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of the order cannot be gainsaid. The plaintiffs and the defendants attacking the decree aver that their ancestors and predecessors were owners of undivided interests. The attorney for the plaintiffs made affidavit that he was familiar with the title, he had necessarily searched it, he had discovered all the owners save those entitled to 246 shares out of the 20 shares into which the ownership was divided. He made oath that he did not know who the parties were who were entitled to these outstanding interests. What more could be say? These parties did not know themselves that they had any interest in the property. The old deeds on which they base their claims were locked up in secret drawers in forgotten desks and boxes, and did not reach the light of day for more than a quarter of a century thereafter. I cannot see what Mr. Stanbrough, the attorney for the plaintiffs, could have done or ascertained, beyond what he set forth in the affidavit.

But it is said that during the hearing before the referee he should have perceived from some of the deeds offered in evidence that Mr. Conklin had conveyed interests in the premises for which he had no record title. But, if this were true, it does not affect the jurisdiction of the court to grant the order of publication, which, of course, antedated the trial before the referee. It is inconceivable that if these parties, whose descendants and grantees now attack the former partition action, had any title, or thought they had any title to Great South Beach, they would not have asserted it. They lived in the vicinity. The proceedings in the partition suit of Greené v. Sammis were well known. But, to my mind, this does not go to the crucial question of jurisdiction. I must hold that the order of publication was properly made.

[2] The form of the notice is criticized. It was addressed to "the unknown owners and all persons interested in the premises described in the complaint and herein above referred to or any part thereof." The description contained in the notice was not as full as that contained in the complaint. But it described the land as “lands in the county of Suffolk, known as the Great South Beach.” Counsel comment on the fact that no boundaries were given in the notice, and that the "Great South Beach," as a whole, was not affected by the partition suit, but only part of it. I think that taking into consideration the physical situation, the description was sufficiently accurate. It covered too much, rather than too little. But a property owner of undivided interests in land in a part of Great South Beach was certainly advised by the notice that the pending litigation affected his · property. Reference to the complaint would give him boundaries.

[3] The notice was directed to be published and was published in the state paper in Albany, and in a local paper for three weeks. This was the precise requirement of the statute, as amended by section 3 of chapter 277, Laws of 1842. That act specifically provided in section 4 that no different notice should be required. The Court of Appeals in Sandford v. White, supra, expressly held that three weeks' publication was all that was required. Counsel say that the question was not before the court in that case. I do not agree to this. I think

(182 N.Y.S.) the attorney for the plaintiff was justified in following the procedure pointed out in the case cited.

Counsel cite the decision of the court in Gleason v. Union Free School District, at the Suffolk, May, 1916, Trial Term, in which the court held, following Kennedy v. Lamb, supra, that an affidavit upon which an order of publication of summons was made was insufficient to confer jurisdiction. But this case is different. There we were dealing with a known owner. The procedure was under a different statute with different requirements. It is entirely reasonable and proper to compel an affiant to disclose what steps he took to ascertain the whereabouts of a known defendant, and the present statute so directs. But once he concede that an owner is unknown, and that must be conceded in the case at bar, what possible diligence could be used or exercised?

I do not think that the court should now, 40 years after the partition decree in Greene v. Sammis, upon the faith of which this entire territory has been developed, declare the partition of no avail, upon the ground urged, that the statute under which the court proceeded was unconstitutional as denying due process of law to the plaintiffs and the other defendants attacking the title. It follows from these considerations that the defendant Atlantic Beach Realty Company and the defendants Norton and Sammis' executors have made out a good defense to the complaint of the plaintiffs and their codefendants, and the complaint must therefore be dismissed.

Complaint dismissed.

GRAND TRUNK RY. CO. OF CANADA y. SATULOFF et al.

(Supreme Court, Special Term, Erie County, May 11, 1920.) 1. Carriers Om 180 (2)-Limitation in bill of lading governs after receipt by

road to which diverted.

Despite Carmack Amendment to Interstate Commerce Act (U. S. Comp. St. 88 8604a, 8604aa), where bill of lading issued by initial carrier provided no carrier should be liable for loss not occurring on its own road, nor after property had been delivered to next carrier, except as such liability might be imposed by law, such agreement governed transportation after car's receipt by railroad to which it was diverted, and in absence of law making such railroad liable for default of its connecting carrier in not transferring car to it in time to be attached to a certain train, counterclaim of consignees to whom car was ultimately diverted

was not valid against last railroad. 2. Carriers m177 (4)--Carmack Amendment does not render connecting car

rier liable for prior losses.

Carmack Amendment to Interstate Commerce Act (U. S. Comp. St. $$ 8604a, 8604aa) does not make a connecting carrier liable for losses sus

tained on other lines before the shipment reaches its own. 3. Carriers Om 196—Consignee cannot offset damages on line of preceding car.

rier against freight claimed by last carrier.

Common-law rule is that right of consignee or owner to offset damages against freight charges cannot be asserted against last carrier with reference to damages on line of preceding carrier, either as to last carrier's charges or charges which it advanced to preceding carrier. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

182 N.Y.S.-6

4. Carriers w193—Last carrier may recover all freight charges advanced by

it.

In case of shipment under bill of lading providing owner or consignee should pay freight and all other lawfùl charges before delivery, if required, where car was diverted to parties other than original consignees, who ordered a further diversion, such parties obligated themselves to pay all freight charges on shipment; road to which car was last diverted becoming accountable to prior carriers for collection and payment of such charges against parties to whom shipment was diverted, and who ordered

further diversion to its line. 5. Carriers ww193—Last carrier entitled to recover charges of connecting car

rier against whom owner has counterclaim for loss.

Where shipment was diverted from original consignee to parties who ordered further diversion, railroad then having shipment agreeing to deliver car in time for certain train on terminal road, but car was not so delivered in time, and parties to whom shipment had been diverted suffered damage thereby, terminal road, suing them for its and all prior charges, could collect those accruing to railroad which had been in default in failing to deliver car to terminal road in time for its train; such recovery not precluding parties from suing road in default directly to recover their damages. Appeal from City Court of Buffalo, Trial Term.

Action by the Grand Trunk Railway Company of Canada against Barnett Satuloff and Nathan Satuloff. From a judgment for defendants on their counterclaim, plaintiff appeals. Reversed and rendered.

Moot, Sprague, Brownell & Marcy, of Buffalo (Herbert P. Miller, of New York City, of counsel), for appellant.

Aaron Fybush, of Buffalo, for respondents.

WHEELER, J. This appeal is from a judgment of the City Court of Buffalo in favor of the defendants and against the plaintiff upon a counterclaim alleged and set up in their answer. The facts are practically undisputed, and the return shows that a carload of 400 crates of strawberries was delivered by one E. F. McGarvey, at Dayton, Tenn., to the Cincinnati, New Orleans & Texas Pacific Railway, consigned to said McGarvey at Cincinnati, Ohio. The usual bill of lading was issued. This car was thereafter diverted while en route to Toronto, Canada. While en route to Toronto, the shipment was again diverted to the defendants at the city of Buffalo, N. Y. When the car arrived in Buffalo the defendants claim they had a conversation with the agent of the New York Central Railroad, in whose custody the car then was, to the effect that the defendants would buy the strawberries from McGarvey, if the New York Central would undertake to transfer the car to the Grand Trunk Railway, the defendant herein, by 10 o'clock of that evening, so the car could be attached to train 427 of the Grand Trunk Railway, and reach Toronto in time for the market the following morning.

The defendants allege that the agent of the New York Central Railroad agreed to make such transfer, and the defendants thereupon became the owners of the car and ordered it forwarded to McWilliams & Ernest at Toronto. The defendants handed over to the New York

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.) Central the necessary customs papers for entry into Canada at about 5:30 p. m. The car, however, was not transferred to the Grand Trunk in time to connect with train 427, although that train waited an hour longer than its usual departing time at 10:30 p. m. The train left without the car containing the strawberries attached. The car was forwarded. The defendants, however, ordered it back to Buffalo while en route, because of the receipt by them of a telegram from the Toronto consignees, stating the car had not arrived in time for the morning market, and they would not, therefore, accept it. The car was thereupon returned to Buffalo, and the berries sold on the open market at Buffalo, by reason of which the defendant suffered a loss.

The plaintiff paid the charges of the connecting carriers, which were in accordance with the duly filed and published tariff rates, and in this action in the City Court sought to recover the same. These charges were as follows: Grand Trunk Railway freight charges....

$ 52.30 New York Central Road freight charges..

51.12 Cincinnati, New Orleans & Texas Pacific Railway freight charges. 74.00 Cincinnati, New Orleans & Texas Pacific Railway refrigerator charges 59.00 Cincinnati, New Orleans & Texas Pacific Railway reconsigning.... 2.00

$238.42 The defendant set up a counterclaim for its alleged loss, due to the failure of the New York Central Railroad Company to keep its agreement to transfer the car to the Grand Trunk in time to connect with train 427. The trial judge in the City Court dismissed the plaintiff's complaint, and gave judgment to the defendants for the full amount of their counterclaim, to wit, $128.75, with interest. From this judgment the plaintiff appeals to this court.

[1] We are at a loss to understand upon what theory the Grand Trunk Railway Company can be held liable for any default of the New York Central Railroad Company in the delivery of the car to the Grand Trunk in time to be attached to train 427 as alleged in the defendants' answer. The bill of lading issued by the original receiving company at Dayton, Tenn., expressly provided that

"No carrier shall be liable for loss, damage or injury not occurring over its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law."

This agreement governed the transportation of the car after its receipt by the Grand Trunk, and unless there is some positive law making the Grand Trunk liable for the default of the New York Central, the counterclaim asserted is not a valid one against the Grand Trunk. There is no allegation and no proof that the Grand Trunk failed in its duty in any respect. The allegation is that, by virtue of an agreement with the New York Central, that company undertook to make delivery to the Grand Trunk in time to connect with a certain train of that road, and failed in that respect, by reason whereof the defendants suffered certain damage.

It will be noted that the defendants' claim for damages is based. therefore, not on the bill of lading issued at the time of shipment, or by reason of any failure on the part of any of the carriers over whose lines the car was transported by reason of any neglect of duty imposed by such bill of lading, but rather by reason of the New York Central Railroad failing to carry out a separate and distinct agree, ment made by the defendants with that company to do a certain and particular thing. The connecting lines (independent of the New York Central) were only bound by the terms of the bill of lading, not by any outside and independent agreement with the Central Company.

So far as the proof in this case is concerned, there is no evidence that the Central Railroad Company failed to perform any of the obligations imposed by the bill of lading, or their duties as a common carrier. In other words, if that company had not made the special agreement alleged to deliver the car in time to be attached to train 427, in delivering it at the time it did a few hours later, it would have fully performed all its obligations as a carrier under the bill of lading issued. For all that appears the Central Railroad may have acted with the utmost diligence, and been entirely free from negligence in the forwarding of the car, although it failed to carry out the special agreement made with the defendants. The defendants' cause of action, therefore, if any exists, grows out of, and must de- • pend on, this special arrangement with the Central Railroad, and not out of any obligation growing out of the original shipment incident thereto, for the Grand Trunk Railway Company was not in any way connected with, or a party to, any such special independent agreement made with the Central Road, and, so far as the record is concerned, had no knowledge of such an arrangement. So far as the record in this case is concerned there appears to have been no new or further consideration for the undertaking of the New York Central Company, and it is very doubtful that any recovery whatever could be had against the Central on such a promise.

These considerations alone, we think, are fatal to the right of the defendants to assert and recover on their counterclaim against the Grand Trunk Railway Company. Over and above these considerations, we think claim cannot be asserted as a basis of recovery against the Grand Trunk. As already stated, one of the conditions of the bill of lading was that,

"No carrier shall be liable for loss, damage, or injury not occurring over its own road,

except as such liability is or may be imposed by law."

Is there any such liability imposed by law on the Grand Trunk Railway Company for loss suffered by the neglect of the New York Central Railroad Company? We think not. Reference has been made to the so-called Carmack Amendment to the Interstate Commerce Act (U. S. Comp. St. $$ 8604a, 8604aa). This act provides:

"That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or a bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such prop

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