the complaints at the close of plaintiffs' case. Among other grounds stated in support of the motion were these:

"That the plaintiff has not made out any cause of action, and that he is not entitled to any relief in a court of equity upon the proof submitted;" also "that the proof submitted makes no case for any equitable relief whatever."

We think the grounds so stated, in connection with the other grounds urged, did not call attention of the trial judge specifically to the claim that plaintiffs' remedy was at law rather than in equity. The motion seems to have been based rather upon the claim that plaintiffs had not made a case entitling them to relief in any court.

[2] But, assuming that it was the intention of plaintiffs' counsel to raise the question that plaintiffs had an adequate remedy at law, we think it was too late at that time to raise such a question. The rule seems to be settled by authority in this state that such a ground of defense must be pleaded by the defendant in his answer. Kobbi v. Underhill, 3 Sandf. Ch. 277; Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. 541; Ketchum v. Depew, 81 Hun, 278, 30 N. Y. Supp. 794; Baron v. Korn, 127 N. Y. 224, 27 N. E. 804; Watts v. Adler, 130 N. Y. 646, 29 N. E. 131.

The other questions urged by appellants as ground for reversal are, we think, sufficiently and correctly considered and disposed of by the opinion of Mr. Justice Wheeler at Special Term. 88 Misc. Rep. 615, 151 N. Y. Supp. 356.

It was conceded upon the argument that the judgments should be modified, so as to provide for the return to the defendants of the securities which plaintiffs received of them. The proper form of such modifications is as follows:

In the Bloomquist Case there should be inserted in the next to the last paragraph of the judgment, after the words "have execution thereof," and before the words "This provision to become operative at the expiration of ten days," the following:

"That upon recovery of said sum from the said defendants plaintiff deliver to said defendants, or to their attorneys, the said ten bonds of the North Sterling irrigation district and the said ten bonds of the Greeley-Poudre irrigation district so sold and delivered by the defendants to the plaintiff, numbered as hereinabove stated."

In the Snow Case there should be inserted, after the words "have execution therefor," and before the words "This provision to become operative at the expiration of ten days," etc., the following:

"That upon recovery of said sum from the said defendants the plaintiff deliver to said defendants, or to their attorneys, the said eight bonds of the North Sterling irrigation district and the said eight bonds of the GreeleyPoudre irrigation district so sold and delivered by the defendants to the plaintiff, numbered as hereinabove stated."

The judgments appealed from should be modified as above stated, and, as so modified, affirmed, with costs, and the orders granting plaintiffs extra allowances of costs should be affirmed, without costs. All

concur.

MURPHY et al. v. NEW YORK CENT. R. CO.

(Supreme Court, Appellate Division, First Department. December 3, 1915.) 1. CARRIERS 18-PUBLIC SERVICE COMMISSION-ORDERS-CONCLUSIVENESS. Public Service Commission Law (Consol. Laws, c. 48) § 28, requires common carriers to file with the Commission schedules of rates and regulations. Section 29 provides that no change shall be made in rates, except upon 30 days' notice or order of the Commission. Section 33 prohibits transportation unless rates are filed. Section 34 prohibits transportation at rates lower than those in the schedules filed. Section 49 provides that on motion or complaint the Commission shall determine whether rates are reasonable, and the carrier shall thereafter obey the orders of the Commission with respect to the rates to be charged. Plaintiffs complained of alleged overcharges, and the Commission ordered their refund. Held, that the order was not binding on the courts as a judgment; no power being granted the Commission to make such an order.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. 18.]

2. COMMERCE

SIVENESS.

88-INTERSTATE COMMERCE COMMISSION-ORDERS-CONCLU

Although the Interstate Commerce Commission ruled track charges for delay in unloading during inclement weather to be unjust discrimination, that ruling is not conclusive upon intrastate shipments, where it does not appear that there was actual discrimination in the charges exacted.

[Ed. Note.-For other cases, see Commerce, Cent. Dig. §§ 139, 141; Dec. Dig. 88.]

Laughlin, J., dissenting.

Appeal from Trial Term, New York County.

Action by Edward D. Murphy and another against the New York Central Railroad Company. From a judgment for plaintiffs, entered by direction of the court without a jury, defendant appeals. Reversed, and complaint dismissed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

William Mann, of New York City, for appellant.

Herman Hoffman, of New York City, for respondents.

SCOTT, J. This is an action brought to recover certain amounts paid by plaintiffs to defendant as "track storage" charges on cars transported by defendant from points within the state of New York. to Melrose Junction in New York City. The facts are undisputed, and the only question of law in the case is as to the binding effect, as an adjudication, of a certain order or resolution of the Public Service Commission, Second Department.

The facts as shown by the pleadings and the stipulation are that during the times mentioned in the complaint the plaintiffs were engaged in business as receivers and shippers of hay, straw, grain, and feed at 788 Morris avenue, New York City, and the defendant was and now is a common carrier engaged in intrastate commerce, subject to the provisions of the Public Service Commissions Law, and had

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 156 N.Y.S.-4

filed with the said Public Service Commission schedules showing its rates, fares, and charges for the transportation of property, and terminal charges, and rules and regulations affecting said rates; that the said schedules provided among other things that a consignee of freight shall have 48 hours from the first 7 a. m. after notice of arrival and placement of a car at destination "free time" in which to unload said car; that if the car is detained beyond the said free time a charge of $1 per day or fraction thereof, called a "demurrage" charge, is made to encourage a reasonably prompt release of the car, and another charge called "track storage" is made, at certain places where track space is comparatively limited, to facilitate the clearance of the delivery of switch tracks, and for use of the space occupied by the car. The charge made for demurrage is $1 per car per day. The track storage charge prior to August 15, 1908, was $1 per car for the first day, $2 for the second, $3 for the third, and $4 for each succeeding day. Since August 15, 1908, the track storage charge has been $1 per day for the first two days after the free time expired, and $2 per day for each succeeding day. The demurrage schedules further provided that the defendant would refund to the consignee of property the "demurrage" charges collected by it when shipments were held in the cars because of the impracticability of unloading, under the following conditions, if they occurred within the free time specified:

When the condition of the weather during the prescribed free time is such as to make it impossible to employ men or teams in unloading cars without serious injury to freight. When shipments are frozen, so as to prevent unloading during the prescribed free time, or when because of high water or snowdrifts it is impossible to get to cars for unloading during the prescribed free time. There was no similar vision in the "track storage" schedules, and no provision in said schedules providing for the remission of track storage charges when weather conditions were such as to interfere with the loading or unloading of the property by the consignee.

Between November 1, 1907, and May 20, 1910, plaintiffs received at defendant's Melrose Junction station, New York City, a number of consignments of freight which originated and terminated within the state of New York, and paid thereon track storage charges amounting to $178, which are claimed to have been unlawful and excessive, for the reason that said charges accrued on days when the weather conditions were such as to interfere with the unloading of the property. The demurrage charges which were paid by the plaintiffs to the defendant, and which plaintiffs claimed were excessive by reason of weather conditions, were refunded by the defendant to the plaintiffs, but defendant refused to refund the track storage charges which accrued under these conditions. In May, 1911, the plaintiffs filed a complaint with the Public Service Commission, Second District, claiming that said. track storage charges were unjust and unreasonable, and proceedings were thereafter had before said Public Service Commission which resulted in a resolution of the Commission to the effect that the plaintiffs were entitled to recover the amount of said charges from the defendant.

On or about August 1, 1911, the defendant modified its track storage schedules, and since that time those schedules have contained a provision similar to the one in the demurrage schedules providing for the refund of demurrage charges which accrue when weather conditions prevent unloading. The Public Service Commission, Second Department, concluded that the "track storage" charges exacted by defendant and included in its filed schedule of tariffs and charges, in so far as the same applied to days upon which, owing to weather conditions, it was impossible or impracticable to unload, were unreasonable. To this finding the defendant makes no objection, and has amended its schedule of rates, tariffs, and charges to conform thereto. In addition to this finding the Commission adopted a resolution, which for the purposes of this appeal is assumed to be equivalent to an order, in the following terms:

"Resolved, that complainants, Murphy Bros., are entitled to recover from respondent, the New York Central & Hudson River Railroad Company, the aggregate sum of $178, with varying amounts of interest computed at the rate of 6 per cent. per annum as hereinafter stated, for and on account of exaction by respondent of unjust and unreasonable track storage charges applied to carloads of freight delivered to complainants at Melrose Junction."

The amounts thus held to be repayable to plaintiffs covered "track storage" charges from January 11, 1907, to June 14, 1911, all of which had been exacted before the determination by said Public Service Commission that said "track charges" were unreasonable. Judgment was rendered against defendants upon the specific ground that the resolution or order of the Public Service Commission "is in effect a finding of an unjust discrimination against the plaintiffs, and until reversed or annulled is binding upon the defendant in this action."

The theory upon which the judgment proceeded is, as indicated by the learned justice who rendered it, that inasmuch as the Interstate Commerce Commission had held "track charges" exacted under like circumstances upon cars engaged in interstate commerce to be unreasonable and unlawful, the exaction of such charges upon cars used in intrastate commerce would constitute unjust discrimination against shippers by the latter class of cars. We are unable to follow this reasoning. The charges sought to be recovered, and for which judgment has been rendered, cover the period from January, 1907, to June, 1911. There is absolutely nothing in the case to show that defendant did not, during the period mentioned, exact precisely the same "track. charges" from cars employed in interstate commerce. From the statement of facts in N. Y. Central & Hudson River R. R. Co. v. Murphy, 225 Fed. 407, — C. C. A. — (Law Journal Sept. 15, 1915), which plaintiffs cite and on which they rely to sustain this judgment, it appears that the order of the Interstate Commerce Commission declaring the exaction of track charges unreasonable was not made until December, 1911, so that it may be reasonably inferred that for the period covered by the refund directed by the judgment appealed from the defendant exacted the same track charges from cars engaged in interstate and intrastate commerce. The plaintiffs' judg ment can therefore be sustained, if at all, solely upon the theory that

the resolution or order of the Public Service Commission directing a refund of certain charges is a valid and binding adjudication.

[1] The power to make such an adjudication must be sought in the Public Service Commissions Law (chapter 48 of the Consolidated Laws). The sections pertinent to the questions now under consideration may be summarized as follows:

Section 28 requires common carriers to file with the Commission rates, fares, and charges for the transportation of persons and property and all rules and regulations which in any wise affect the value of the service.

Section 29 provides that, unless the Commission otherwise orders, no change shall be made in the rates, fares, or charges so filed, except after 30 days' notice.

Section 33 prohibits the transportation of property by the carrier until rates are filed with the Commission.

Section 34 provides that no common carrier shall permit any person or corporation to obtain transportation for any passenger or property between points within the state at less than the rates established and in force, in accordance with the schedules published and filed with the Commission, and prohibits any person from obtaining or seeking to obtain transportation for property at less than the rates contained in the schedules filed with the Commission.

Section 49 provides that whenever the Commission shall be of the opinion, after a hearing had upon its own motion or upon a complaint, that the rates, fares, or charges demanded or collected by a common carrier, or that the regulations or practices of such carrier are unjust, unreasonable, or discriminatory, or otherwise in violation of the provisions of the statute, the Commission shall determine the just and reasonable rates, fares, and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, and, if the regulations of the carrier are unjust or unreasonable, the Commission may determine the just and reasonable regulations to be observed by the carrier, and thereafter it shall be the duty of the carrier to obey such order as the Commission may make with respect to the reasonable rates to be charged in practices to be observed by the carrier in the future.

It is apparent that section 49 contains no specific authority to the Public Service Commission to make a valid adjudication that the carrier shall refund charges exacted in strict conformity with its filed schedule, but which the Commission deems to have been unreasonable. Everything in the section relating to what must be done by the carrier looks to the future. When the Commission shall have determined that a given rate is unreasonable or unjust, and shall have determined what is a just and reasonable rate, such rate or charge is thereafter to be observed and in force, and it is made the duty of the carrier thereafter to abide by such decision. It is sought to spell out authority for the adjudication as to the refund of past charges from the language of section 48 of the Public Service Commissions Law, but that section simply authorizes the Commission, in acting upon a charge against a common carrier, "to take such action, within its powers, as the facts justify." This still leaves it necessary to resort to other sections of