which under independent and different provisions justifies the same result which was originally secured by the erroneous order. In his application for a writ of habeas corpus the relator by his petition was required to set forth "the cause or pretense of the imprisonment or restraint according to his (the) best knowledge and belief." Code Civ. Proc. § 2019. The person to whom the writ was issued was required by his return to set forth the authority and true cause of the imprisonment or restraint. Section 2026. Thereupon the court or judge was required to proceed "in a summary way to hear the evidence produced in support of or against the imprisonment or detention and to dispose of the prisoner as the justice of the case requires." This petition, return, and decision spoke of and were based upon the facts as they existed at the time. The appeal from the order to the Appellate Division would naturally and properly bring up those facts as they thus existed and not others subsequently arising. While thus, as I think, the Appellate Division would not be justified in affirming the order which was made because subsequently to the determination of the habeas corpus proceedings a certificate of reasonable doubt had been granted which entitled relator to a stay and release upon bail, but would be compelled to reverse the same, still very naturally upon being informed that such latter steps had been taken and that the defendant was, therefore, entitled to be upon bail, it would so frame its decision as not uselessly to remand the relator to a custody from which he would be entitled to immediate release.

The order should be reversed, but inasmuch as the defendant has now been released upon bail under a stay following a certificate of reasonable doubt, it is unnecessary to direct that he should be remanded to custody.

O'BRIEN, J. (dissenting). The appeal in this case is from an order of the Appellate Division, which unanimously affirmed an order of the Special Term sustaining a writ of habeas corpus and admitting the relator to bail. The only question presented is whether this order made by the learned court below is affected with any legal error. There is no other question in the case that this court can review. Singularly enough, it is asserted and urged by both parties upon this appeal that the question is purely academic, that whatever way it may be decided here, it can have no effect upon the parties to the controversy. The learned district attorney at the close of his brief, after stating that the order should be reversed, concludes with the following statement: "If, however, this court should decline to consider the question on the ground that it was academic he respectfully urges that the court will so declare. If the question is academic here, it was equally academic below. Should this court decline to

reverse or to affirm or to express its own views of the law, in that event it is urged at least to state that the expressions in the opinion below are obiter." The substance of the argument of the district attorney is directed not so much against the judgment rendered as the opinion delivered. It is not unusual in this court to deal with a perfectly correct decision that may, however, be based to some extent upon an erroneous reason. But, it seems to me that in this case the order complained of is sustained by the plain language of the statute. The whole contention on the part of the district attorney is that this statute does not mean what it says, and that instead of following its plain terms it should receive some other construction. This contention, it seems to me, is fully answered by the learned opinion of the court below, and I do not propose to deal with any question here except the single question presented, and that is whether, in making the order complained of, the learned court below committed a legal error. The learned court from which this appeal is taken stated the question before it in these words: "The sole question presented is whether or not, after a conviction of a crime not punishable with death, a defendant, who has appealed and obtained an order from a justice of the Supreme Court staying the execution of the judgment pending the determination of an application for a certificate of reasonable doubt, may be admitted to bail before the granting of the application." The question in this court is still narrower, and it may be stated in these terms: Did the Appellate Division, when granting the order appealed from, have before it the necessary facts and documents which made it the duty of the court to affirm the order sustaining the writ of habeas corpus and admitting the relator to bail? If so, then the order is clearly right and should be affirmed.

It will be seen from what has been said that this controversy originated in an application by the relator after conviction to a judge of the court for a certificate of reasonable doubt and for a stay of proceedings pending the determination of that application.

The stay of proceedings was granted and subsequently the certificate of reasonable doubt; and the sole contention of the learned district attorney arises from the fact that the relator was admitted to bail upon this application and before the judge had made the certificate. It is admitted that if the relator had been discharged upon bail a few hours after the judge had signed the certificate, that the proceedings would then be perfectly proper, but that the judge in staying the proceedings and allowing bail a few hours or days before the certificate was formulated exceeded his authority. In order to sustain that contention it seems to me that a plain and simple statute must be perverted to purposes that the Legislature

has not expressed, and the enactment is so general and so simple in its language that it would seem to be not open to construction. There is no dispute about the power of the judge in this case to grant a stay of proceedings pending the application. Code Cr. Proc. § 529. He did grant a stay and concurrently admitted the relator to bail. That is the only error complained of. It is provided by section 555 of the same Code that a defendant convicted of a crime not punishable with death may be admitted to bail in a case where he has appealed, and when there is a stay of proceedings. In this case the relator had appealed before the bail was allowed, as appears from his replication to the traverse in the record. There was a stay of proceedings also, and so the case is brought directly within the plain words of the stat ute. The relator had been convicted of conspiracy. He had appealed. He had procured a stay of proceedings, and so the case falls directly within the plain words of the statute. The judge had the power to grant a stay pending the application for the certificate of reasonable doubt, and he had the power to admit the relator to bail in a case where he had appealed and where there was a stay. But it is contended that the stay granted by the judge in this case was only temporary, and the distinction is sought to be made between a temporary stay and what is called a permanent stay. The distinction, however, is not perceived, since every stay of proceedings is necessarily temporary in the sense that it is operative only until some other or further judicial action is had. One stay may be for a longer time than another, but they are all temporary, and operate in every case only until the object for which it was granted is attained. I am not able thus far to discover any legal error in the proceedings of the learned judge in admitting the relator to bail.

But there is another view of this case which seems to me to be conclusive against the appeal. The learned court below, as a court, had the power and it was its duty to sustain the writ of habeas corpus if it had the necessary facts before it. In this respect it is required to act as a court of original jurisdiction, and every member of the court sitting alone possessed the same power and was charged with the same duty. Code Civ. Proc. § 2017. There is no dispute about the fact that when the learned court below made the order appealed from it had before it every fact and every document that called for the relator's discharge, and, hence, it was right in sustaining the writ, even if there was any question as to the power to admit the relator to bail pending the application for the certificate of reasonable doubt. The principle is well settled that a court of review is not necessarily bound to reverse a judgment or order for some defect in the original proceeding. If the defect consists in

the absence of a document or record it may be produced on the argument with the same force and effect as if produced on the original application. Jarvis v. Sewall, 40 Barb. 449; Catlin v. Grissler, 57 N. Y. 373; Wines v. Mayor, etc., of N. Y., 70 N. Y. 613; Matter of Cooper, 93 N. Y. 507; Dunham v. Townshend, 118 N. Y. 286, 23 N. E. 367; Stemmler v. Mayor, etc., of N. Y., 179 N. Y. 482, 72 N. E. 581.

And yet it is contended that the learned court below should have reversed the order, and that it committed a legal error in affirming it. If it had reversed the order and remanded the relator to prison it could be called upon the next moment to discharge him upon habeas corpus. It had before it all the necessary facts and records which required it to act in giving effect to this writ of liberty. It had the relator's petition, the other pleadings in the case and the certificate of reasonable doubt, and there could be no answer under these circumstances to the relator's application for a discharge, and all this being true, can it be said with any propriety that the court committed a legal error in sustaining the order made by one of its own members admitting the relator to bail, and that it should have reversed that order because made in advance of the certificate of reasonable doubt which was before the court on the argument? If the court, when making the order appealed from, could do just what one of its members had done before, was it legal error to confirm what had been done, even though a document, namely, the certificate of reasonable doubt, was not before the judge when he made the order? It has been shown that the court was not only a court of review, but in the particular case before it, a court possessing original jurisdiction, and to reverse the order of the Special Term sustaining the writ and admitting the relator to bail would seem to encourage a process of circumlocution in habeas corpus proceedings utterly at variance with the spirit and purpose of that statute.

I think that there was no legal error in the decision below, and that the order should be affirmed, or the appeal dismissed.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, WERNER, and CHASE, JJ., concur with HISCOCK, J. O'BRIEN, J., reads dissenting opinion. Order reversed.

clause therein limiting the steamship's liability for loss or damage to baggage to $50, unless the full value was disclosed and freight paid, did not exempt the passenger from enforcement thereof.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Shipping, § 554.]

2. SAME-LOSS OF BAGGAGE LIMITED LIABILITY-NEGLIGENCE,

An ocean steamship ticket contained a provision that in no event should the steamship be liable for loss of baggage for an amount exceeding $50, unless the value of the baggage in excess of that sum be declared at or before the issuance of the contract or at or before the delivery of the luggage to the ship, and freight at current rates for every kind of property is paid thereon. Held, that such provision was effective to limit the carrier's liability in case of loss of baggage to the amount specified, though the loss was the result of the carrier's ordinary negligence.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Shipping, § 554; vol. 9, Cent. Dig. Carriers, §§ 1544-1549.]

Cullen, C. J., and Haight, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Theodore Tewes against the North German Lloyd Steamship Company. From a judgment of the Appellate Division (93 N. Y. Supp. 1149, 104 App. Div. 619) affirming a judgment in favor of plaintiff, after the denial of a motion to set aside the verdict (85 N. Y. Supp. 994), defendant appeals. Reversed.

This action was brought to recover damages for the loss of plaintiff's baggage, consisting of a trunk containing wearing apparel, which loss it is alleged was caused by the defendant's negligence. The plaintiff is a resident of Long Island City, and on or about June 20, 1900, purchased a ticket from the defendant entitling him to passage on the defendant's steamship Grosser Kurfürst from Hoboken, N. J., to Bremerhaven, Germany, to sail on June 28th following. This ticket, which in its general features is in the usual form, contained the following provisions: "It is mutually agreed that this ticket is issued by the North German Lloyd Steamship Company and accepted by the passenger on the following conditions:

It is also

agreed that neither the shipowner, nor the passage broker or agent, nor the ship, is in any way liable for loss of or injury to or delay in delivery of luggage or personal effects of the passengers beyond the amount of fifty dollars, unless the value of the same in excess of that sum be declared at or before the issue of this contract, or at or before the delivery of said luggage to the ship, and freight at current rates for every kind of property is paid thereon." Two days before the day of sailing the plaintiff delivered his trunk to an expressman with directions to deliver it to the defendant. It was properly marked for delivery on board the steamship Grosser Kurfürst. One of the expressmen, called as a witness for the plaintiff, testified that he delivered the trunk at the place where he had 78 N.E.-55

been in the habit of delivering baggage for a number of years, that a watchman at the entrance to defendant's piers told him what pier to place it on, and that he delivered it to whoever was there. It appears that plaintiff's trunk was not placed on the steamer on which he took passage, but by some mistake it was left on a different pier of the defendant than that from which the Grosser Kurfürst sailed, where it was subsequently destroyed by a fire which occurred on June 30th and greatly damaged the defendant's piers. The jury rendered a verdict in favor of the plaintiff for $289.50, the value of the trunk and its contents, and the judgment entered on that verdict was unanimously affirmed at the Appellate Division.

Joseph Larocque, Jr., for appellant. Lyman W. Redington, for respondent.

WERNER, J. (after stating the facts). For the purposes of this appeal we must assume that plaintiff's trunk was properly delivered to the defendant. The verdict of the jury settled that question in plaintiff's favor, and the unanimous affirmance of the Appellate Division precludes us from examining the record to ascertain whether the verdict is supported by evidence. There are exceptions to the charge, however, the principal one of which relates to the provision in the passage ticket purchased by the plaintiff, purporting to limit defendant's liability for loss of baggage. After the learned trial court had charged the jury very briefly as to the delivery of the trunk, and as to the obligations which the defendant assumed if the fact of proper delivery were deemed to be established, the defendant's counsel requested the court to charge "that in no event can the defendant be liable for an amount exceeding $50." In response to this request the court charged: "If this clause in this passage contract that the liability must be limited to $50 to each person

** if that clause was not called

to the attention of the plaintiffs, and they knew nothing about it, and by the exercise of reasonable attention would not have known it, in that case it will go for nothing, and the amount will be fixed at the full value which you find these things were worth." This charge was clearly in conflict with a number of well-settled cases which hold that there is a just and logical distinction between an ordinary railroad ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to ascertain and understand. Steers v. Liverpool, N. Y. & P. S. S. Co., 57 N. Y. 1, 15 Am. Rep. 453; Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575; Wheeler v. Oceanic Steam Nav. Co., 72 Hun, 5, 25 N. Y. Supp. 578, affirmed without opinion 149 N. Y. 576, 43 N. E. 990.

The error in the charge referred to was later discovered by the learned trial judge upon the hearing and consideration of a motion for a new trial, when he handed down an opinion which recognized the controlling force of the cases above cited, but denied the motion on the ground that the passage ticket or contract contained no provision absolving the defendant from liability for its own negligence, and that the finding of the jury necessarily established the defendant's negligence in failing to put the trunk aboard the steamer on which the plaintiff sailed pursuant to his contract. To support this conclusion a number of cases were cited which, we think, have no application to the case at bar, since they all relate to the common-law liability of common carriers, unaffected by special contract stipulations designed to limit the carrier's liability. There is, however, a case (Westcott v. Fargo, 61 N. Y. 542, 19 Am. Rep. 300) which seems to support the conclusion that a stipulation limiting the amount for which the carrier shall be liable does not cover a loss of goods occasioned by his negligence. That action was brought to recover the value of a bale of furs, which had been shipped through the defendant's express company and lost by its negligence. The receipt given to evidence the shipment contained the following limitation: "Nor shall this company be liable for any loss or damage of any box, package or thing for over fifty dollars unless the true and just value thereof is herein stated." The value of the furs was not stated in the receipt, and the defendant had no means of knowing the value or nature of the contents of the package. The plaintiff's agent had delivered the receipt containing the limitation to the defendant's agent, who signed and redelivered it to the former. In deciding that under such circumstances the plaintiff was entitled to recover, Dwight, C., writing for the Commission of Appeals, said: "The true question in this cause concerns the effect upon the parties of the stipulation that the defendant should 'not be liable for any loss or damage of any box, package or thing for over fifty dollars, unless the just and true value is herein stated.' It must be conceded that this stipulation, under the circumstances of this case, is a part of the contract, and is binding on the plaintiff. This was decided in Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575, and in Steers v. Liverpool, N. Y. P. Steamship Co., 57 N. Y. 1, 15 Am. Rep. 453. * * * The result of these cases is that it is lawful for a carrier to make such a contract as was entered into in the present case, and that he may, by clear and distinct expressions, relieve himself from losses occasioned by his own negligence." After thus clearly stating the rule, which has ever since been consistently followed, the learned commissioner concluded that the words of limitation in the receipt referred to were not so unambiguous as to exempt the carrier from

liability for its own negligence, and he was of opinion that the case was controlled by the decision in Magnin v. Dinsmore, 56 N. Y. 168, where it was held that, although a common carrier may stipulate for his exemption from liability for losses through his negligence, his contract will not be construed to contain such an exemption, unless it is so expressly agreed. The decision in Magnin v. Dinsmore, supra, was handed down in March, 1874. The case of Westcott v. Fargo, supra, was decided by the Commission of Appeals in January, 1875. In the following May the Magnin Case came to this court on a second appeal, where it was held that a stipulation limiting the amount for which the carrier shall be liable was binding upon the shipper who had notice of the limitation and whose merchandise had been lost by the ordinary negligence of the carrier. In that case the merchandise consigned consisted of watches and watch keys. The shipper did not disclose their real value. The receipt given by the carrier provided that: "If the value of the property above described is not stated by the shipper, the holder thereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss or detention of or damage to the property aforesaid." In reversing a judgment for the full value of the goods lost, this court said: "As has been stated, in the absence of agreement for a limited liability, it is the duty of the carrier to make all needful inquiry as to value. But, when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run and of the care needed and holds out the package to him as an ordinary article which he would have no objection to take as of course. The carrier is thereby put off his guard. The shipper might refuse to agree to a limited liability and demand generally carriage upon the common-law liability of the carrier; and then they deal at arms' length, and that would arouse the attention of the carrier, or at least would put upon him the duty of inquiry. But, accepting carriage upon the terms of a limited liability, the shipper indicates his judgment of the degree of the risk and of needed care, and his silence as to real value is the same as an assertion of mean value, thus keeping the carrier from his adequate reward, and, what is worse, misleading him as to the degree of care and security which he should provide."

The foregoing extract from the opinion in the Magnin Case on the second appeal (62 N. Y. 35, 20 Am. Rep. 442) makes it clear that the Westcott Case, 61 N. Y. 542, 19 Am. Rep. 300, was distinctly overruled, and it is to be observed that the latter case has never been followed in any of the decisions of the court upon the subject rendered since then. When the Magnin Case came to this court a third time (70 N. Y. 410, 26 Am. Rep. 608), the rule laid down on the second appeal was distinctly reiterated, and it has been

followed by this court in several subsequent cases. In Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460, 33 N. E. 642, the plaintiff sued to recover the value of a mare killed while in transit on the defendant's road. The contract recited that, in consideration of reduced rates, it was agreed that in case of loss the value of the mare should be held not to exceed $100. The mare was killed through the negligence of the carrier. Judge Gray there said: "In this case the contract did not exempt the company from liability for the negligence which, we must assume, occasioned the loss of the horse. That occurred through none of the causes particularly specified in the contract, and nothing precluded the plaintiff from recovering upon the negligence proven; but the amount of his recovery was limited by the contract to the sum of $100." The case last cited was followed in Wheeler v. Oceanic Steam Nav. Co., 72 Hun, 5, 25 N. Y. Supp. 578, affirmed 149 N. Y. 576, 43 N. E. 990, where a passenger upon a transatlantic steamer, holding a passage ticket limiting the liability of the carrier to ten pounds sterling for the loss of goods, the real value of which is not declared, delivered to the carrier with her other baggage a box of valuable portraits, which were lost through the latter's negligence. There it was held that there is no valid distinction in principle between a shipment of goods and a transportation of passengers with the carriage of baggage as an incident, when the contract is one which limits the liability of the carrier, unless a special declaration of value is made by the shipper or passenger. The rule adopted by this court has been sustained by the federal Supreme Court in Hart v. Penn. R. R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717, where the contract provided for the transportation of horses which were stated to be of the value of $200, and the recovery was limited to that amount, although the loss was much greater and was occasioned by the negligence of the carrier.

It has been suggested that there is, or should be, a distinction between a case where the stipulation is designed merely to limit the carrier's liability, as in the case of a passenger whose baggage is carried free of charge, and the case of a stipulation framed for the double purpose of enabling a carrier of goods for hire to obtain proper compensation, as well as to limit his liability if no declaration of value is made by the shipper. At first glance this suggestion has a plausible appearance, but it does not seem to stand the test of analysis. It is not apparent why a carrier should be subjected to a greater liability in respect of a service which he performs free of charge, or simply as an incident to the carriage of persons. than is imposed upon him in the transportation of merchandise pursuant to a contract in which that is the precise duty which he

undertakes for a specified hire. In the car riage of baggage the passenger usually exercises some degree of supervision or direction which may somewhat increase or diminish the carrier's actual responsibility; but in the shipment of goods the carrier takes complete possession and control, so that, if there could be any logical differentiation of the carrier's liability in the two cases, it could very plausibly be argued that it ought to be relaxed rather than augmented in the carriage of a passenger's baggage. But, whatever might be said upon that proposition, it is enough to suggest that it is not an open question in this state, for this court, as we have seen, has held that no such distinction exists.

The judgment herein should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff shall stipulate to reduce his recovery to the sum of $50, with interest from the date of his loss, and costs, in which event the judgment herein as reduced should be affirmed, without costs of this appeal to either party.

HAIGHT, J. (dissenting). J. (dissenting). This action was brought to recover the value of the plaintiff's trunk, and wearing apparel therein contained, which was delivered to the defendant company for transportation from New York to Bremen on the North German Lloyd steamship Grosser Kurfürst, to sail June 28, 1900, at 12 o'clock noon, but which, by reason of the negligence of one of the defendant's employés, was placed on the wrong pier, and was not, therefore, placed on board of the vessel when she sailed, and was subsequently destroyed by fire. The question arising upon the trial with reference to the delivery of the trunk to the defendant, and the negligently placing of it upon the wrong pier, was settled by the verdict of the jury and the unanimous affirmance of the judgment entered thereon by the Appellate Division.

The plaintiff had previously procured a ticket from the defendant's office for his transportation from New York to Bremen on the steamship named, which contained the condition to the effect that the defendant should not be liable "for loss of or injury to or delay in delivery of luggage or personal effects of the passengers beyond the amount of fifty dollars, unless the value of the same in excess of that sum be declared at or before the issue of this contract, or at or before the delivery of said luggage to the ship, and freight at current rates for every kind of property is paid thereon." The court, in its charge to the jury, submitted the question as to whether the plaintiff had his attention called to this condition embraced in the ticket at the time he procured the same, or that he knew of the provision at the time of the delivery of the trunk to the defendant. For the purpose of