First Departinent, March, 1921. [Vol. 196 Georgia to Philadelphia. (Wien v. N. Y. C. & H. R. R. R. Co., 166 App. Div. 766.) The underlying question in the case is, was there a new contract made between the parties for the transportation of the merchandise from Conyers to Philadelphia, the place of business of plaintiff's assignors? When Pottash Bros. sent a letter to defendant under date of August 10, 1918, inclosing the two original bills of lading with the request to have the goods forwarded to them at Philadelphia, they acted strictly in accordance with the defendant's letter of August 3, 1918, to them, which concluded with the words: "Please send us your bill of lading or shipping receipt with instructions for immediate disposal of the property." There were also inclosed in the letter of August tenth two so-called new bills of lading made by the plaintiff's assignors. Of course, these were not bills of lading strictly speaking, but they throw light upon the nature of the transaction and the relationship of the parties that were then being established. Defendant claims that its actions were gratuitous and in the nature of an accommodation to the shippers in receiving the original bills of lading, so that the goods might be readily obtained from the storage warehouse in Georgia where they had been placed after the purchaser's refusal to accept them. The delivery of the indorsed original bills of lading entitling the holder to receive the goods was tantamount to a constructive delivery of the goods to the defendant. The circumstance that when a new contract was made between defendant and Pottash Bros. for the return of the goods, the goods were at Conyers and not at Savannah where defendant's steamship was docked is not controlling. Defendant had the right to make a contract for the carriage of the goods notwithstanding that the starting point was elsewhere than along the line of its own route. A corporation carrying over a portion of a continuous line of transportation may contract to carry beyond the terminus of its route, and may also contract to receive goods away from its terminus to be transported to such terminus over the route of another carrier, and to be forwarded over its route. (Swift v. Pacific Mail Steamship Co., 106 N. Y. 206.) App. Div. 254] First Department, March, 1921. The significant facts that indicate the making of a new contract with the defendant are: (1) That the goods were returned over the same route to New York that was used in forwarding the goods from New York to Conyers; (2) that the consignors had made no new contract with the Central Railroad of Georgia; (3) that defendant asked for the original bills so that it might regain possession of the goods stored in Georgia; (4) that none of the communications that subsequently passed between the parties indicated that the services of the defendant in directing the reshipment were gratuitous, or in the nature of a mere accommodation. The fact that no bill of lading was delivered to Pottash Bros. by defendant is not significant nor inconsistent with the entering into a new contract without any bill of lading. (Moore Carriers [2d ed.], 176, citing Texas Midland R. R. v. H. L. Edwards & Co., 56 Tex. Civ. App. 643; 121 S. W. Rep. 570; Aton Piano Co. v. Chicago, M. & St. P. R. Co., 152 Wis. 156.) It seems to us too that, irrespective of the foregoing considerations, there was enough evidence to charge defendant with negligence, not only because of the delay in forwarding the goods from New York to Philadelphia after they had reached New York, but also for the delay that occurred before the goods started on their way from Georgia. Defendant was particularly advised of the shippers' address in Philadelphia by November 1, 1918, and yet there was an unexplained delay of about three months before the goods were delivered in Philadelphia. The delay in Georgia of six weeks is also unexplained by the defendant. There were thus four and one-half months delay which it was incumbent upon the defendant to explain. There was no explanation as to how the mistake of directing the goods to New York city instead of to Philadelphia occurred, whether through the mistake of the defendant or of the Central Railroad of Georgia. As to the Carmack Amendment to the Hepburn Bill amending the Interstate Commerce Act (34 U. S. Stat. at Large, 593, 595, § 7, amdg. 24 id. 386, § 20) upon which defendant relies, although it declares that the initial carrier is liable for damages notwithstanding that the damage was occasioned by one of the connecting railroads, it does not relieve defendant from liability for its own negligence. First Department, March, 1921. [Vol. 196 When the shipment herein was made and bills of lading issued the Carmack Amendment had been superseded by the First and Second Cummins Amendments. (38 U. S. Stat. at Large, 1196, 1197, chap. 176; 39 id. 441, 442, chap. 301.) The shipper may sue the defendant even if it were not the initial carrier, if it be established that the defendant was negligent while acting as a carrier of the goods over its own line. (Varnville Furniture Co. v. Charleston & W. C. Ry. Co., 98 S. C. 63; 79 S. E. Rep. 700.) It follows that the exceptions taken on the trial must be sustained and a new trial ordered, with costs to plaintiff to abide the event. CLARKE, P. J., DOWLING and MERRELL, JJ., concur; LAUGHLIN, J., concurs in the result on the ground that the defendant is responsible for its own negligence with respect to delay at New York on the return shipment. Exceptions sustained and new trial ordered, with costs to plaintiff to abide event. Settle order on notice. ISAAC KASTON, Respondent, v. NATHAN ZIMMERMAN, Defendant, Impleaded with GEORGE ORLOVE & Co., INC., Appellant. Appeal - First Department, March 11, 1921. Court of Appeals appeal as of right from judgment entered on order of affirmance by Appellate Division by divided court questions not to be certified — when questions to be certified notice of appeal to Court of Appeals to specify intermediate order to be reviewed. A judgment of the Appellate Division entered on an order affirming a judgment of the Special Term of the Supreme Court is a final determination of the action and an appeal to the Court of Appeals lies therefrom as of right where the affirmance is not unanimous; the appeal is not taken from the order of affirmance but from the judgment entered thereon. It would be improper in such case to certify questions of law to be reviewed by the Court of Appeals, as it is only where an appeal is allowed from a determination of the Appellate Division, other than from a judgment which finally determines the action, that one or more questions must be App. Div. 260] First Department, March, 1921. certified, and when an appeal is allowed from a judgment finally determining the action, the court merely certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. If upon an appeal to the Court of Appeals as of right from a judgment entered on an order of affirmance by the Appellate Division, the appellant intends to review any intermediate order, the notice of appeal must distinctly specify such order to be reviewed. MOTION for leave to appeal to the Court of Appeals from a determination of the Appellate Division, First Department, affirming a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 5th day of November, 1920, on the decision of the court rendered after a trial at the Bronx Special Term. Morris Grossman, for the motion. Henry Waldman, opposed. PER CURIAM: This is a motion for leave to appeal to the Court of Appeals from the determination of this court affirming a judgment for the plaintiff entered upon a decision after a trial at Special Term of the Supreme Court, Bronx county. The order of affirmance was entered February 4, 1921, two of the justices dissenting. (195 App. Div. 930.) The judgment of this court when entered upon such order would be a final determination of the action. In any event, therefore, it would be improper to formulate any questions of law to be reviewed by the Court of Appeals, as it is only where an appeal is allowed from a determination of the Appellate Division, other than from a judgment or order which finally determines an action or special proceeding, that one or more questions must be certified, in which case the appeal brings up for review the question or questions so certified, and no other (Code Civ. Proc. § 190, subd. 3); but where the appeal allowed is from a judgment or order which finally determines the action or special proceeding, this court merely certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals (Id. subd. 4), upon which certificate every proper question of law involved may be raised on the appeal. Section 190 of the Code of Civil Procedure (Subd. 1), however, Second Department, March, 1921. [Vol. 196 provides that an appeal may be taken as of right to the Court of Appeals from a judgment or order entered upon a decision of the Appellate Division which finally determines an action or special proceeding, where, among other reasons, one or more of the justices dissents from the decision of the court. The appeal must be taken from the judgment of the Appellate Division entered pursuant to section 1355 of the Code, and not from the order upon which such judgment is entered. (Dwight v. Gibb, 208 N. Y. 153; Osborn v. Cardeza, 209 id. 530; Howes v. New York Press Co., 224 id. 575.) When a judgment has been entered upon the order of this court filed herein on February 4, 1921, an appeal therefrom may be taken as of right to the Court of Appeals. If upon such appeal the appellant intends to review any intermediate order, the notice of appeal must distinctly specify such order to be reviewed. (Code Civ. Proc. § 1301.) This motion is, therefore, denied as unnecessary. Present CLARKE P. J., LAUGHLIN, DOWLING, SMITH and GREENBAUM, JJ. Motion denied. In the Matter of the Application of the LITHUANIAN WORKERS' LITERATURE SOCIETY, Appellant, for an Amended Certificate of Incorporation. CHARLES D. NEWTON, Attorney-General of the State of New York, Respondent. Corporations Second Department, March 31, 1921. membership corporations application to amend charter so as to include persons not opposed to Marxian principles " denied Marxian principles as within prohibition of Penal Law, sections 160, 161. - An application of the Lithuanian Workers' Literature Society to amend their charter, so as to admit to membership persons not opposed to the "Marxian principles approved by the majority of the members," is properly denied, where it appears that there is dissension among the Lithuanians as to whether such principles advocate the overthrow of the government by violence, rather than by constitutional or parliamentarian |