Misc.] Appellate Term, First Department, January, 1918. It has been held and there is abundant authority in support of the statement that a motion once denied by a judge cannot be renewed unless with leave of the same judge who denied it, or unless made upon presentation of new facts which have occurred since the denial of the previous motion, in which case the renewal may be made as a matter of right. Goldenberg v. Adler, 123 N. Y. Supp. 387, and cases cited. In the instant case, it appears that the first motion was made before the judgment had been entered. The second motion was clearly made upon the belief that all the papers in the first motion had been lost and that the motion had come to naught, but the moving papers in the second motion, which was made after the judgment was entered, contained the additional statement, which was not disputed, that upon the day set for an inquest the defendants' attorney appeared and asked to be allowed to interpose an answer and that the request was denied. Under this state of affairs it cannot be held that the second motion was improperly made or that the court below had no jurisdiction to hear it. In an attachment proceeding without service of process upon the defendants a judgment may be entered and the property attached applied to the payment of the judgment, but such judgment is merely presumptive evidence in an action subsequently brought. Mun. Ct. Code, $ 55. Strictly speaking, the defendants were not in default as they were never served. Grave and substantial reasons should be assigned in order to deprive a party of the right to have his day in court and no valid reasons whatever are shown in this case. Although this court has held, in Norenberg v. Keith, 101 Misc. Rep. 551, that section 48 of the Municipal Court Code, on which plaintiff relies to show juris Appellate Term, First Department, January, 1918. [Vol. 102. diction in the Municipal Court, is unconstitutional, such decision does not affect the case now under consideration as the defendants herein have voluntarily appeared and are asking to have their default opened and for leave to file an answer. Order reversed, with ten dollars costs, and motion granted; defendants to file an answer within ten days and trial ordered of the issues. LEHMAN and FINCH, JJ., concur. Order reversed, with costs. HENRY J. KOLB, Respondent, v. GEORGE C. TAYLOR, as President of the American Express Company, Appellant. (Supreme Court, Appellate Term, First Department, January, 1918.) Express companies - liability of action against express company for loss of trunk carriers-master and servant judgments. In an action against an express company for loss of a trunk it appeared that it was delivered to defendant's agent at plaintiff's home by an illiterate servant to whom the expressman gave a receipt stating that the shipment was made subject to the classifications and tariffs in effect on the date of such delivery and containing the usual limitation of liability of fifty dollars for the first hundred pounds and fifty cents for each additional pound. Whether the expressman informed the servant that the liability was limited to one hundred dollars was disputed but he inserted that valuation in the receipt. The trunk weighed 220 pounds and defendant was paid two dollars and fifty cents, the minimum charge, and under the filed tariffs the plaintiff was entitled to only the lowest liability, and a judgment in his favor should be modified by reducing the same to $110. Misc.] Appellate Term, First Department, January, 1918. APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, for $849 and costs. Carter, Ledyard & Milburn, (Walter H. Merritt, of counsel), for appellant. A. Parker-Smith, (Robert B. Honeyman, of counsel), for respondent. FINCH, J. The action is against an express company for the loss of a trunk. There is no dispute as to defendant being liable, and the only question is as to the amount. There is no dispute that the trunk and its contents were worth the amount for which judgment has been entered, but defendant contends that its liability was limited to $110 by the express receipt and filed tariffs. The trunk was delivered to defendant's agent at plaintiff's home by an illiterate servant girl to whom the expressman delivered a receipt, stating that this shipment was made " subject to the classifications and tariffs in effect on the date hereof," and containing the usual limitation of liability of fifty dollars for the first 100 pounds and fifty cents for each additional pound, unless a specific value was given by the shipper. The trial court held that the limitations did not apply here because the servant girl was concededly illiterate and unable to read the receipt. There was a dispute of fact as to whether the expressman informed her that the liability was limited to $100. At any rate, he inserted that valuation in the receipt, but since the trunk weighed about 220 pounds the liability would be at least $110. Defendant was paid $2.50, being the minimum charge, and under the filed tariffs Appellate Term, First Department, January, 1918. [Vol. 102. entitled the shipper to only the lowest liability. Plaintiff's wife took the receipt the next day, and three days thereafter gave it to plaintiff. Under the authorities, if the servant girl had been able to read, there is no doubt but that defendant's contention would be upheld; but even under the present circumstances defendant's contention should prevail because it is held that the shipper is chargeable with notice of the filed schedules and tariffs and that these provisions are terms of the contract. Granbery v. Taylor, 159 N. Y. Supp. 932; D'Utassy v. Southern Pacific Co., 172 App. Div. 547; Gardiner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 387; Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97. It follows that the judgment should be modified by reducing the same to the sum of $110 and appropriate costs in the court below, and, as so modified, affirmed, with twenty dollars costs to the appellant, costs of appeal to be set off against the judgment. LEHMAN and WEEKS, JJ., concur. Judgment modified and, as so modified, affirmed, with costs. DUSAL CHEMICAL COMPANY, Respondent, v. SOUTHERN PACIFIC COMPANY, Appellant. (Supreme Court, Appellate Term, First Department, January, 1918.) Carriers — notification to― bills of lading — dismissal of complaint — Interstate Commerce Commission - Personal Property Law, § 219. A common carrier's obligation under a straight bill of lading is completed upon delivery of the goods to the consignee therein named and it need not require the surrender of the bill of lading itself. Misc.] Appellate Term, First Department, January, 1918. In such case the carrier having delivered the goods to the consignee without the bill of lading which bore upon its face the words "Draft against B/L" is in nowise concerned as to whether the goods have been paid for, and a judgment in favor of the consignor upon a claim that because of the notice delivery should not have been made without the production of the bill of lading will be reversed and the complaint dismissed. Under section 219 of the Personal Property Law protection to the consignor could have been secured by notification to the carrier that a third party was the transferee of the bill of lading. APPEAL by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff. Esselsyn & Haughwout, for appellant. A. Frank Cowen (Bernard Cowen, of counsel), for respondent. LEHMAN, J. The plaintiff shipped certain goods from New York to "Brown's Drug Store" in New Orleans. The goods were shipped on a "straight bill of lading. The defendant delivered the goods to the consignee named in the bill and the plaintiff has brought this action and recovered judgment upon a claim that the defendant had no right to deliver to the consignee without the production of the bill of lading because the bill bore on its face the words. "Draft against B/L." The rules of the Interstate Commerce Commission provide for straight bills of lading and order bills of lading and the forms to be used for uniform bills of lading. The bill of lading in this case is concededly in the form provided for a straight bill of lading. The law governing the obligation of carriers under such a bill of lading has been clearly set forth in the case of |