Erie Railroad v. F. Kieser & Son Co.

Cochrane, P. J. The shipment in question was interstate. Under the provisions of the Interstate Commerce Act the term “ transportation ” includes storage charges. (24 U. S. Stat. at Large, 379, § 1, subds. 3-6, as amd. by Transportation Act of 1920 [41 id. 474, 475], § 400; Cleveland, Cincinnati, etc., Railway Co. v. Dettlebach, 239 U. S. 588, 593.) It is alleged in the complaint that the charges in question corresponded to the schedules of charges and rates on file with the Interstate Commerce Commission and a recovery herein by the plaintiff must depend on the establishment of that fact. (Keogh v. Chicago & Northwestern Railway Co., 260 U. S. 156, 163; Burke v. Union Pacific Railroad Co., 226 N. Y. 534, 543.) Questions as to the reasonableness of the rates and charges cannot be considered in this court without preliminary resort to the Commission. (Great Northern Railway Co. v. Merchants Elevator Co., 259 U. S. 285, 291; Louisville & Nashville Railroad Co. v. Maxwell, 237 id. 94, 97; 12 C. J, 132; Baltimore & Ohio Railroad Company v. LaDue, 128 App. Div. 594.) Defendant does not seriously question the foregoing propositions. But it contends that plaintiff should have transferred this property [503] to a Warehouse company, the charges of which for storage would have been less than one-tenth of the lawful charges which plaintiff was authorized to make therefor. In drawing the answer the pleader evidently had in mind section 68 of the Railroad Law which so far as pertinent is as follows: “ Every railroad or other transportation corporation, doing business in this State, which shall have unclaimed freight or baggage, not live stock or perishable, in its possession for the period of sixty days, may deliver the same to any warehouse company, or person or persons engaged in the warehouse business, within this State, and take a warehouse receipt for the storage thereof.” The statute then goes on to declare that thereupon the carrier shall be discharged from all liability in respect to such freight; that if such carrier shall have had such freight in its possession one year and shall not have delivered it to a warehouse company as above provided it may sell the same at public auction but not until the expiration of four weeks from the first publication of notice of sale. It was under this statute that the plaintiff sold the property in question and there is no complaint that the requirements of the statute in reference to the sale were not properly observed. This statute imposed no duty on the plaintiff to turn the property over to a Warehouse company. It is plainly permissive in its nature. It was enacted for the benefit of the carrier. ' Its purpose was to enable the carrier to protect "itself against congested storage facilities. We do not see that the defendant acquires any benefit or advanatage from this statute. But the defendant further urges that plaintiff should have enforced its lien before the storage charges exceeded the value of the property. It sold the property at the earliest time permitted by the statute which could not be less than one year after the possession thereof nor until the expiration of four weeks after the first publication of the notice of sale. It is, of course, true that independent of the statute plaintiff might at any time have brought an action to recover its charges or for the enforcement of its lien. We know of no authority or principle of law which required it to do so in the absence of facts or circumstances not alleged in this answer. In Morgan v. Murtha (18 Misc. 438), relied on by defendant, the question arose on an exception to a charge to the jury and it was merely held that the jury should have been instructed “ that the plaintiffs were only entitled to such further storage charges as had accrued within a reasonable time.” Section 68 of the Railroad Law would seem to imply that a carrier may ordinarily hold the property for the period of one year. ' The defendant should allege facts showing the unreasonableness of the plaintiff. There is no allegation in the answer that defendant did not know that the [504] property was being held by plaintiff subject to storage charges, nor is there any other allegation which excuses the defendant from the duty of protecting its own property. In Manhattan Shoe Company v. Chicago, Burlington & Quincy Railroad Co. (9 App. Div. 172) the headnote is as follows: “ The carrier is bound to give notice to the consignor that the consignee has refused the goods only when reasonable care would require it; when such notice is given to the consignor he must take immediate action and direct the carrier as to the disposition to be made of the goods. The consignor cannot, by his inaction under such circumstances, cast upon the carrier the duty of caring for the property.” There is in the answer no allegation of fact indicating negligence or bad faith on the part of the plaintiff or that it held the property an unreasonable time and hence we conclude that the defenses and counterclaim under consideration present no issue. Finally the defendant claims that a general denial in a former part of the answer must be considered as part of these defenses and counterclaim under rule 90 of the Rules of Civil Practice which contains new provisions as follows: “ Denials of facts alleged in the complaint or in an answer and denied by reply must not be repeated nor incorporated in a separate defense or counterclaim. Any fact once denied shall be deemed denied for all purposes of the pleading.”- This general denial bears no relation to the facts alleged in these defenses and counterclaim. If inserted therein it could under the former practice have been stricken out. (State of South Dakota v. McChesney, 87 Hun, 293; Stieffel v. Tolhurst, 55 App. Div. 532.) The purpose of rule 90 is to obviate the repetition of denials which but for the rule might properly be repeated and not to extend throughout an entire pleading the effect of a denial which but for the rule could not properly be repeated. The order so far as appealed from should be reversed, with-ten dollars costs arid disbursements, and the motion granted, with ten dollars costs, with leave to defendant to serve an amended answer within twenty days on payment of such costs. All concur. Order, so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to serve an amended answer within twenty days on payment of such costs.