
    The People of the State of New York ex rel. Erie Railroad Company, Respondent, v. Public Service Commission of the State of New York, Second District, Appellant.
    
      People ex rel. Erie R. R. Co. v. Public Service Commission, 176 App. Div. 28, affirmed.
    (Argued March 2, 1917;
    decided March 20, 1917.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4,1917, which annulled, on certiorari, an order of the defendant directing the relator to continue the operation of a switch connection to and a private side track upon premises of the Lancaster Machine and Knife Works and determining the following clause in an agreement tendered by the relator for execution by the machine and knife works to be unreasonable: “ Sixth. It is understood that the movement of cars and engines over said side track involves a risk of injury to or death of persons and damage to property, and, as between the parties thereto, the shipper assumes the risk of loss of or damage to its property occasioned by, or arising out of, the construction or maintenance of said side track, or the operation of cars or engines thereon, whether caused by the negligence of the railroad company, its agents or employees, or by any other cause, and all risk of injury to the persons of, or of the death of, its officers or members or of any of its employees, occasioned by, or arising out of, such construction, maintenance or operation, unless such' injuries or death are shown to have been caused solely by the negligence of the railroad company, its agents or employees; and said shipper agrees to indemnify and save harmless the railroad company from all claims for such loss, damage, injury or death so assumed by it, and from all costs and expenses connected therewith.”
    
      Ledyard P. Hale for appellant.
    
      Lewis E. Carr for respondent.
   Order affirmed, with costs, on opinion of Cochrane, J., below.

Concur: Hiscock, Oh. J., Chase, Cuddeback, Hogan, McLaughlin and Andrews, JJ. Dissenting, on dissenting opinion of Kellogg, P. J., below: Pound, J.  