Hamilton Employment Serv., Inc. v. New York Tel. Co.
| Citation | 171 N.E. 710,253 N.Y. 468 |
| Parties | HAMILTON EMPLOYMENT SERVICE, Inc., v. NEW YORK TELEPHONE CO. |
| Decision Date | 06 May 1930 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Action by Hamilton Employment Service, Inc., against the New York Telephone Company. Judgment of the Appellate Division, First Department (228 App. Div. 625, 238 N. Y. S. 847), affirming a judgment of the Special Term dismissing the complaint, and plaintiff appeals.
Affirmed.
Appeal from Supreme Court, Appellate Division, First department.
E. Crosby Kindleberger, of New York City, for appellant.
Irving W. Young, Jr., N. H. Egleston, Edward F. Snydstrup, and Charles T. Russell, all of New York City, for respondent.
For several years plaintiff was a subscriber to defendant's telephone service in New York city. It occupied a main office in Church street and a branch in Madison avenue with separate numbers assigned to it by the telephone company. During those years plaintiff's numbers appeared correctly listed in defendant's directory. In the volune issued for December, 1928, the number for its main office was omitted and the one for the branch office incorrectly listed. The mistakes do not appear other than unintentional. As a result of these omitted and incorrect listings, plaintiff expended moneys in advertising in newspapers, issuing circulars, and employing solicitors in order to communicate with its customers, and it brings this action to recover damages for the breach of contract in failing to publish the correct numbers. In the absence of reasonable contract stipulations limiting liability for omissions and errors, defendant might perhaps be liable for breach of contract. Courts in other jurisdictions have so held or, at least, intimated. Masterson v. Chesapeake & Potomac Tel. Co., 52 App. D. C. 23,299 F. 890;Baldwin v. Chesapeake & Potomac Telephone Co., 156 Md. 552, 144 A. 703;Schwauke v. Wisconsin Tel. Co., 227 N. W. 130. Telephone companies are, no more than telegraph companies, insurers, but they are bound to exercise adequate diligence. Weld v. Postal Telegraph-Cable Co., 199 N. Y. 88, 92 N. E. 415.
As part of the contract of service, appears a condition or regulation as follows: ‘No liability for admages arising from errors or ommission in the making up or printing of its directories shall attach to the company, except in the case of charge listings, in connection with which its liability shall be limited to a refund at the monthly rate for each listing for the time an error or omission continues after reasonable notice in writing to the company.’ Unless this condition is reasonable, it is not binding upon plaintiff. The preparation and delivery of a directory is not a primary part of the business of a telephone company. It is wholly subordinate to the main transaction of transmitting messages. A directory may be compared to a railroad time...
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