
    Fred G. Clarke, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued April 28, 1915;
    decided May 14, 1915.)
    
      Clarice v. N. Y. C. & II. JR. li. JR. Co., 157 App. Div. 194, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 22, 1913, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover for the loss of baggage checked by defendant upon two passenger tickets. The complaint alleged that upon payment by plaintiff of certain excess baggage charges, defendant transported the said property over the West Shore railroad, which it operated as lessee, to Catskill, N. Y., where it stored the same in the baggage room of its station at that place; that December 6, 1909, said station, with its contents, including the property of plaintiff, was destroyed by fire, and that by reason of the careless and negligent conduct of defendant’s agent in and about the fire, plaintiff’s property was burned and entirely destroyed; that after the discovery of said fire by defendant’s agent, there was ample time within which to remove from said station all baggage therein, including that of plaintiff, but defendant’s agent refused to remove the same or to allow it to be removed; and that plaintiff’s baggage was destroyed through the failure of defendant’s agent to use due care to preserve the same. Defendant admittted the operation by it of the West Shore railroad; the delivery to it November 19,1909, by plaintiff, of three trunks and a carrying case with their contents; the acceptance, checking and transportation of plaintiff’s property as baggage, to Catskill, N. Y., and the storing of the same by defendant in the baggage room of its station at that place; denied any negligence on its part; alleged that plaintiff negligently failed to remove his baggage prior to December 6, 1909, when it was destroyed by fire, and further alleged as a partial defense, that under its schedule of rates, fares and charges for the transportation of passengers and their baggage, filed with the public service commission, its liability was limited to $300.
    
      Amos Van Etten for appellant.
    
      John L. Fray for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hisoook, Collin, Cuddeback, Hogan, Oardozo and Seabury, JJ. Absent: Willard Bartlett, Ch. J.  