
    Charles P. Dorff, Respondent, v. Antonio Taya et al., Copartners under the Firm Name of Hijos de Jose Taya S. en C., Appellants.
    
      Carriers — action to recover amount prepaid for freight on merchandise shipped on vessel lost at sea.
    
    
      Dorff v. Taya, 200 App. Div. 894, affirmed.
    (Argued June 12, 1922;
    decided July 12, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered, February 15, 1922, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was for money had and received, brought by the alleged assignee of an ocean bill of lading for a recovery of $22,116.96, representing freight which was prepaid by the shippers on a consignment of cotton shipped on board the defendants’ steamship Guadalquivir in February, 1918, at Wilmington, N. C., for carriage to the port of Genoa, Italy. On the voyage across the Atlantic the steamship was sunk by an enemy submarine and, together with her cargo, was a total loss. The plaintiff is seeking to obtain a refund of the prepaid freight on the theory that because of the non-delivery of the cargo, the freight was unearned; and that he, as holder of the bill of lading, is entitled to recover it. Among others, the principal defense is based on a contract between the shippers and the defendants, other than that contained in the bill of lading, to the effect that the latter should retain the prepaid freight in any event, ship or goods lost or not lost.
    
      Robert S. Erskine, John M. Woolsey and Harry D. Thirkield for appellants.
    
      Walter C. Noyes for respondent.
   Judgment and orders affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Caedozo, Pound, McLaughlin, Crane and Andrews, JJ.  