negligence as a matter of law, and no recovery can be had for injuries resulting from the collision. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 209216; Dec. Dig. 99.] Appeal from Municipal Court, Borough of Manhattan, Ninth Dis trict. Action by the Estate of Frederick Buse, Incorporated, against George W. Linch, as receiver of the Second Avenue Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and complaint dismissed. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. Charles E. Chalmers, of New York City (Charles H. Tuttle and Harold R. Medina, both of New York City, of counsel), for appellant. Albert Edward Maves, of New York City, for respondent. PAGE, J. The action was brought to recover damage for injuries to a pair of horses and a truck belonging to plaintiff, sustained through a collision with a trolley car operated by the defendant. The truck, heavily loaded, was standing on the east side of Second avenue, facing north, and the driver started his team and swung them around, crossing the tracks a short distance south of Sixty-First street. He saw the car approaching rapidly when he started to cross the north-bound tracks and held up his hand. The car, according to the driver's testimony, was then in the middle of the block between Sixty-First and Sixty-Second streets; but he paid no further attention to the car. When the front wheels were between the south-bound tracks, the car struck the northerly front wheel, and caused the injuries for which this action is brought. It is clear that the plaintiff's driver was chargeable with contributory negligence as a matter of law. Lopes v. Linch, as Receiver (App. Div. June 4, 1915) 153 N. Y. Supp. 673, and cases there cited. The judgment should be reversed, with costs, and complaint dismissed, with costs. All concur. (90 Misc. Rep. 702) MAXWELL v. FAUST CO., Inc. (Supreme Court, Appellate Term, First Department. June 28, 1915.) 1. COPYRIGHTS 48 LICENSEE - LIABILITY FOR AGREED COMPENSATION PERFORMANCES FOR PROFIT. Where a restaurant keeper, as licensee of the right to perform certain copyrighted musical compositions, agreed to pay a certain sum monthly, and the license entitled him to give performances for profit, the fact that he gave no performances for profit did not relieve him from liability for the agreed compensation. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 46; Dec. Dig. 48.] 2. CUSTOMS AND USAGES 17-CONTRACTS-CONSTRUCTION. Where such contract was not ambiguous, it could not be construed in the light of the custom of restaurants to give gratuitous musical performances, and thereby rendered invalid under Copyright Act March 4, 1909, c. 320, § 1, subd. E, and section 25, 35 Stat. 1075, 1081 (U. S. Comp. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes St. 1913, §§ 9517, 9546), as licensing the right to use the licensor's compositions in performances not "for profit." [Ed. Note. For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. ~17.] A contract will, if possible, be construed so as to render it effective, rather than ineffective. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 734; Dec. Dig. 153.] Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by George Maxwell, as president of the American Society of Composers, Authors and Publishers, against the Faust Company, Incorporated. From judgment for defendant, plaintiff appeals. Reversed and judgment directed for plaintiff. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. Benjamin Shapiro, of New York City (Harry Schulman, of New York City, of counsel), for respondent. BIJUR, J. This appeal raises only a question of law. Defendant operates a restaurant. Plaintiff controls the rights of performance of certain musical compositions. The plaintiff, by a written contract, granted defendant the license to perform any work in the repertory of the plaintiff for one year, October 1, 1914 to 1915, on the premises No. 1823 Broadway. The licensee accepted the license and agreed to pay the plaintiff the sum of $10 monthly. This action is brought to recover certain of the monthly installments. [1] The learned judge below found for defendant on the authority of John Church Co. v. Hilliard Hotel Co., 221 Fed. 229, 136 C. C. A. 639. In that case the owner of the copyright applied for an injunction against the performance by an orchestra in a hotel of a certain musical composition. It was held that, as the hotel proprietor charged no admission fee for the performance, the latter was not a performance "for profit" as prescribed in Copyright Act 1909, § 1, subd. E, and section 25; but that decision is quite irrelevant to plaintiff's cause of action here. He is suing for the agreed compensation, payable monthly, for rights granted by him to defendant, and these rights, under the contract, include performances for profit as well as gratuitous performances. The mere fact that defendant has not chosen heretofore to give performances for profit does not relieve it from the obligation of its agreement. [2, 3] Defendant urges that the contract should be construed in the light of what both parties must have known as to the custom of restaurants and hotels of giving gratuitous musical performances. But there is no ambiguity in the contract, and no reason for its construction to mean other than what it says. But, if there were, it seems to me that defendant, in urging that the contract is void for want of consideration because it grants to defendant only that which it already can enjoy under the law (namely, the right to perform these For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 154 N.Y.S.-15 compositions not for profit), has itself suggested the need of construing the contract differently from what it claims. It is a familiar canon of construction to construe a contract, if it may consistently be done, to be effective, rather than ineffective. Therefore, if any construction were necessary, it would be to read it into the contract that defendant was licensed to give these performances for profit, as well as gratuitously, since, if the latter alone were meant, the agreement would be void for want of consideration. Judgment reversed, with costs, and judgment for plaintiff directed, with appropriate costs in the court below. All concur. RUDOLPH WURLITZER CO. v. BARRETT. (Supreme Court, Appellate Term, First Department. June 28, 1915.) DAMAGE TO GOODS 1. COURTS 189 - MUNICIPAL COUrt- - PROCEDURE PLEADING-LIMITATION. In an action in the Municipal Court of New York City for damage to an express shipment, where the pleadings were oral and defendant pleaded "General denial and special contract," a provision in the contract requiring an action for damages to be commenced within one year may be relied on. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. 189.] 2. CARRIERS 162-DAMAGES TO GOODS-ACTIONS-LIMITATION BY CONTRACT. In an action for damages to an express shipment, where the shipper introduced the express receipt in evidence, the company is entitled to the benefit of the provision therein limiting the time for commencing an action, though it did not especially plead it. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 720, 721; Dec. Dig. 162.] Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by the Rudolph Wurlitzer Company against William M. Barrett, as president of the Adams Express Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. Edward V. Conwell and George W. Smyth, both of New York City for appellant. Kramer & Bourke, of New York City (J. J. Kramer and J. P. Bourke, both of New York City, of counsel), for respondent. GUY, J. The plaintiff has recovered damages herein for injuries to its motor, shipped by the Picturedome Company through the defendant to plaintiff's place of business in New York City. The defendant tendered the motor at the plaintiff's store on November 26, 1913, but the plaintiff refused to take it, because, as plaintiff claims, it was damaged. while in the custody of the defendant. The express receipt, which is the contract of shipment and was put in evidence by the plaintiff, provides that the defendant shall not be liable in any suit to recover for loss or damage unless the action shall For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes be commenced within one year after such loss or damage. This action. was not begun until February 9, 1915, more than a year after the damage to the motor. [1, 2] Respondent contends that, as the limitation referred to was not pleaded, it cannot be availed of by the appellant. The pleadings were oral, and the defendant pleaded "General denial and special contract." Moreover, plaintiff, having offered the receipt in evidence, was bound by its terms, and defendant was entitled to the benefit thereof. Burke v. Erie R. R., 134 App. Div. 413, 119 N. Y. Supp. 309; Jonasson v. Weir, 130 App. Div. 528, 115 N. Y. Supp. 6. Judgment reversed, with costs, and complaint dismissed, with costs. All concur. (91 Misc. Rep. 35) LEVY et al. v. OLD DOMINION S. S. CO. (Supreme Court, Appellate Term, First Department. June 23, 1915.) CARRIERS 24-INTERSTATE COMMERCE ACT-CARRIAGE BY WATER. Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379, as amended by Act June 18, 1910, c. 309, 36 Stat. 544 (U. S. Comp. St. 1913, § 8563), providing that the act shall apply to any common carrier engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used under a common contract, management, or arrangement in interstate or foreign commerce, section 20 of that act, as amended by Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. 1913, § 8592), imposing on the initial carrier liability for damages to a shipment on the line of any carrier does not apply to a shipment by water and rail, where the steamship company by its bill of lading agreed to deliver to destination if on its line, otherwise to deliver to another carrier, and there was no evidence of any common arrangement between the steamship company and the railroad company, or even that there was a joint rate. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 60-66; Dec. Dig. 24; Commerce, Cent. Dig. § 26.] Guy, J., dissenting. Appeal from City Court of New York, Trial Term. Action by Benjamin E. Levy and another, as executors of the estate of Adolph E. Salomon, against the Old Dominion Steamship Company. Judgment for plaintiffs, and defendant appeals. Reversed, and new trial ordered. Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ. Burlingham, Montgomery & Beecher, of New York City (George R. Allen, of New York City, and Leonard J. Matteson, of Mt. Vernon, of counsel), for appellant. Almy, Van Gordon, Evans & Kelly, of New York City (William) S. Evans, of New York City, of counsel), for respondents. PAGE, J. This is an action for damages to a shipment of 177 bales of old bagging delivered to the defendant at New York for transportation to Charlotte, N. C. The defendant is a steamship line operating between New York and Norfolk, Va. The bill of lading which it issued for the goods provided that the company agreed to de For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes liver it to the place of destination if on its line, "otherwise to deliver to another carrier on the route to said destination." Charlotte, N. C., is not on the defendant's line, and the bill of lading was routed “Seaboard Air Line," meaning that the defendant would deliver the shipment to that line at Norfolk, Va., for transportation to Charlotte, which is a point on the Seaboard Air Line. At the trial the defendant's attorney requested the court to charge the jury: "That the contract of the defendant, the bill of lading, was only to carry to Norfolk, Va., on the route to the destination of the shipment in question, and unless plaintiff shows that the shipment was not delivered in good condition by this defendant to the Seaboard Air Line Railway at Norfolk, Va., the next carrier at that point, the verdict of the jury must be for the defendant." This the court refused, and in another place charged the jury: "There is a federal statute, * and in that law it is provided as follows: 'Any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or a bill of lading therefor, and shall be liable to the lawful holder thereof for any loss damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered, or over whose line or lines such property may pass, and no contract receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.'" The court further charged that for the purpose of this case the plaintiff need only prove that the damage to the goods occurred somewhere between New York and Charlotte, N. C. The statute quoted above and charged to the jury as the law in this case is a portion of section 20 of the Interstate Commerce Act, as amended June 29, 1906. Section 1 of the act as amended by Act June 18, 1910, defines what carriers are subject to its provisions as follows: "That the provisions of this act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural or artificial gas by means of pipe lines, * and to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water when both are used under a common contract, management or arrangement for a continuous carriage or shipment) from one state or territory of the United States or the District of Columbia, to any other state or territory of the United States or the District of Columbia. In the case at bar, while the bill of lading shows an arrangement between the shipper and the defendant to receive the goods and deliver them to the Seaboard Air Line for further transportation to Charlotte, N. C., the record is barren of any evidence showing an arrangement. of any kind between the defendant and the railroad company to whom the property was to be delivered, and it was therefore not brought by the proof within the terms of the act, which only applies to transportation by water under a common "control, management or arrangement for a continuous carriage or shipment" with a railroad company. Mutual Transit Co. v. U. S., 178 Fed. 664, 102 C. C. A. 164. unnecessary here to consider what evidence might be sufficient to es |