97 Misc. 26 | N.Y. App. Term. | 1916
This action was brought to recover alleged overcharges for car demurrage paid by the plaintiff to the defendant at various times between November 19, 1911, and September 16, 1914. Upon the authority of New York & New Jersey Produce Co. v. New York, New Haven & Hartford R. R. Co., App. Term, First Dept. Nov. 1915, the plaintiff was entitled to recover. The reason that the case was not followed by the learned trial justice doubtless was that there was no opinion handed down either upon the trial or upon the affirmance in that case, so neither the facts nor the ground's of the decision were before the court. Reference to the record in that case and to the unpublished justices’ report on the appeal shows that the facts in the two cases are essentially the same and the decision rendered therein sustaining a recovery must now be followed.
In the case at bar, however, a question is presented which was not raised in the other case, namely, that of jurisdiction. The cars upon which the charges were assessed and collected by the defendant contained interstate shipments of produce consigned to the plaintiff at the Harlem river station of the defendant, New York city. The demurrage collected was pursuant to a tariff governed by the uniform car demurrage rules approved by the interstate commerce commission. On
Guy and Bijur, JJ., concur.
Judgment affirmed, with costs.