
    Joseph Dobbins, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Dobbins v. D., L. & W. R. R. Co., 177 App. Div. 132, affirmed.
    (Submitted June 2, 1919;
    decided July 15, 1919.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 13, 1917, affirming a judgment in favor of plaintiff entered upon a verdict. Plaintiff loaded on defendant’s cars and tendered for shipment some 27,000 pounds of cabbage together with a bill of lading. Defendant’s agent wrote on the face of the bill of lading the words “ More or less frozen when received.” Later plaintiff returned the bill of lading to the station agent and demanded a bill of lading free from the words descriptive of the condition of the cabbage. The agent refused to give a clean bill. The plaintiff refused to accept the bill containing the indorsement and gave it back to the agent. Failing to accomplish the making of any contract of shipment, the plaintiff told the agent that he was compelled to throw the car over to the railroad company and let it take care of the cabbage loaded thereon. The railroad company thereafter shipped and sold the cabbage. This action was brought to recover its full value.
    
      F. W. Thomson for appellant.
    
      James F. Dougherty for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Collin, Cuddeback, Cardozo, Pound and Andrews, JJ. Not sitting: McLaughlin, J.  