Lawrence Textile Corp. v. American Railway Express Co. , 125 Misc. 858 ( 1925 )

Genung, J.:

The defendant failed to file affidavits in reply on the return day of the motion (Rules of Civil Practice, rule 64), but the court allowed the defendant an additional time to file and serve such affidavits and imposed ten dollars costs as a condition therefor.

A motion for summary judgment cannot be granted against a common carrier. (Norwich Pharmacol Co. v. Barrett, 205 App. Div. 749.) The damages claimed are not liquidated damages and do not fall within the definition of liquidated damages. (Rules of Civil Practice, rule 113; Norwich Pharmacol Co. v. Barrett, supra.) The amount stated in the receipt issued by the defendant would seem to .limit the liability, rather than to fix the amount of damages. (Hart v. Pennsylvania R. R. Co., 112 U. S. 331; Adams Express Co. v. Croninger, 226 id. 491.) The answer presents a valid defense and raises an issue for trial by the court or jury. Motion for summary judgment, therefore, is denied, without costs.