
    Pillsbury Flour Mills Company, Respondent, v. Erie Railroad Company, Appellant.
    
      Carriers — railroads — action to recover for merchandise shipped as freight and destroyed by fire after arrival at destination — defense that railroad was liable only as warehouseman.
    
    
      Pillsbury Flour Mills Co. v. Erie R. R. Co., 220 App. Div. 826, affirmed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 1, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, without a jury, upon stipulated facts. The action was to recover for flour destroyed by fire in defendant’s cars at Weehawken, N. J., the night of November 3, 1921. The flour was shipped from Minneapolis, and the cars had on the evening of the fire been placed on defendant’s tracks alongside defendant’s dock D for unloading and delivery by defendant to plaintiff the following day in warehouse space in dock D, leased by plaintiff. The fire was of unknown origin, and happened without fault of either party. The defenses were the provisions of the bills of lading changing the insurer’s liability of defendant as carrier to that of warehouseman forty-eight hours after arrival and notice thereof; also certain provisions of the lease to plaintiff of the warehouse space in dock D whereby plaintiff assumed risk of fire to property on or about the leased premises arising out of the condition, use or location thereof or the operation, maintenance or existence of defendant’s railroad or its appurtenances.
    
      William C. Cannon, Theodore Kiendl and George M. Skinner for appellant.
    
      Ray Rood Allen, Everett Masten and Eugene Underwood, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ. Not sitting: Crane, J.  