153 N.Y.S. 478 | N.Y. App. Div. | 1915
Lead Opinion
The plaintiff brought this action to recover the sum of $618.53, freight charges. The defendant admitted the material facts, but set up a counterclaim for $114,880.73’ with interest for several years last past, under the terms of a contract by which the plaintiff agreed to pay to the defendant one cent for each 100 pounds of incoming and outgoing freight handled by the defendant. In the plaintiff’s reply to the defendant’s amended answer it is admitted that the bills of the defendant from 1904 to 1905, with one exception, were paid, and that the bills since that time have not been paid, and it does not appear to be seriously questioned that the contract was good at common law. The real question at issue is
In the year 1887 the defendant moved its plant to the city of Schenectady and acquired eleven acres of land and two buildings. These premises were adjacent to the Delaware and Hudson Company’s railroad tracks, which company operated a siding about 1,000 feet in length into the property of the defendant, and, for a considerable time, by the use of its own motive power, placed cars for the defendant in positions to be conveniently loaded or unloaded, this process being known as “spotting.” The plaintiff had no access to the premises at the time, and incoming and outgoing freight on the plaintiff’s lines was spotted by the Delaware and Hudson Company’s locomotives, for which the latter company made a uniform charge of one dollar per car, this charge being absorbed by the plaintiff as a part of its transportation. That is, the New York Central and Hudson River Railroad Company made a flat rate to Schenectady, and it recognized that a part of its duty in transporting freight to and from Schenectady was the spotting of cars upon the premises of the defendant. It was never suggested, so far as appears, that its duty was completed by merely running these freight cars off from its right of way and placing them upon the siding within the defendant’s premises; it recognized that its obligation ended only with the spotting of the cars — the placing of them at convenient points for loading or unloading. Not having the facilities for performing this duty of transportation, it entered into a contract with the Delaware and Hudson Company to complete the work, making no extra charge to the shipper. This arrangement, by which the defendant afforded yard facilities in a measure for its own convenience and the plaintiff furnished the means of properly spotting the cars upon the defendant’s own premises, does not appear to be open to any objection; it was the usual and customary method of handling business at Schenectady,
With the growth and development of the defendant’s plant the premises were increased from time to time until at present there are about 150 acres within the fences, with something like twelve miles of standard track, interlaced with narrow-gauge tracks for the purpose of moving heavy freight from building to building within the plant. With this enlargement of the territory covered by the plant has come a siding connecting the plaintiff’s railroad lines with the defendant’s tracks within the plant, and the movement of freight aggregates about 100 cars each way per day. The defendant furnishes the yard facilities for the handling of this vast quantity of freight. In addition to this, it has from time to time put on new locomotives, until now six locomotives are in constant use in spotting freight and in doing the interplant work of the company. These locomotives were purchased and put into use under the provisions of the contract between the plaintiff and defendant, by which the former undertook to place its cars upon the defendant’s tracks within the latter’s yards, and the defendant, for a consideration of twenty cents per ton, was to separate the cars and spot them for loading and unloading, as had previously been done by the Delaware and Hudson Company. The plaintiff, in its defense to the defendant’s counterclaim, contends that it has performed its contract of transportation in delivering these 100 cars, more or less, incoming upon the defendant’s siding within its plant, and it taking the same number of cars from such siding and placing them in trains upon its own right of way. That is, while it spots cars for other persons and corporations owning sidings within their own plants in the city of Schenectady, that, in reference to the defendant it has performed its duty when it has gathered into trains and has deposited upon the interchange siding of the defendant the aggregate number of cars incoming, and has taken from such siding the loaded or empty cars outgoing. It should he remembered that under the evidence it appears that these cars are gathered into trains twice each day and placed. This means
Assuming, what no one questions, that the payment of twenty cents per ton for the spotting of cars upon the defendant’s premises is a fair and just proportion of the flat rate of transportation fixed for the city of Schenectady, the plaintiff is bound by the broad rules governing the duties of a common carrier to make this payment to the defendant, just as it was in the early days of the development to pay a similar charge to the Delaware and Hudson Company for performing this part of the transportation service, and the statute nowhere runs
The judgment appealed from should be reversed and judgment directed for the defendant on its counterclaim. '
All concurred (Kellogg, J., in result in memorandum), except Howard, J., dissenting.
Concurrence Opinion
A contract for transportation of freight includes its reasonable delivery. Reasonable delivery depends upon the conditions existing at the place where the delivery is to be made. Ordinarily the small dealer or manufacturer receives and delivers his freight at the railroad company’s warehouse, docks or sidings. The manufacturer who, from time to time, receives or ships carloads of freight arranges with the company for a siding, and the freight is delivered at the consignee’s siding or at a particular factory within his works. Under ordinary circumstances, such delivery is reasonable, and being generally accorded it may be required by all similarly situated. By making such deliveries the company does not, however, bind itself to do the impossible, or to make deliveries at other factories where the conditions make such delivery impracticable.
Within the defendant’s fences are 150 acres of- land, with 50 or 60 large buildings and many- smaller .ones, in all about 140, with a narrow-gauge railroad running crosswise. It is
If the defendant receives the loaded cars at the sidings and returns the empty cars or cars reloaded with outgoing freight at the sidings it is manifestly performing a service some of which is for the benefit of the defendant, and is embraced within the contract .of transportation, and such service is of great value to the plaintiff.
There is nothing before us to show that the amount agreed upon is excessive under the circumstances. The agreed rate has been filed with the Commission and acted upon. If the Commission has held that the railroad company can make no payment for such services we disagree with it, and hold that a reasonable compensation under all the circumstances should he made. It, therefore, seems that until the Commission, by affirmative action, recognizes the fact that some compensation is to be made and determines that the amount agreed upon is excessive and in substance a rebate, the plaintiff’s liability is clear. I, therefore, concur in the result.
Judgment reversed, with costs, and judgment directed for the defendant on its counterclaim, with costs.