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(182 N.Y.S.) erty may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprite any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

[2] This act simply provides in substance that, whenever a shipper or owner suffers loss or damage to a shipment over a number of successive lines, he may either sue the initial carrier, which under the act becomes responsible, not only for the damage done on its own line, but as well on the lines of connecting carriers, or the shipper or owner may, if he elects, sue the carrier on whose line the damage occurred. There is nothing in this act, however, which makes a connecting carrier liable for losses sustained on other lines before the shipment reaches its own. Consequently the Grand Trunk cannot be made liable in this case for losses occasioned by the negligence or omission of the New York Central Company. Neither is there anything in the common law, independent of the statute, which holds a connecting carrier to such a liability.

[3] The common-law rule is stated in 6 Cyc. 496, where it is said: “The right of the consignee or owner to offset damages against freight cannot be asserted against the last carrier with reference to damages on the line of the preceding carrier, either as to the last carrier's charges or the charges which he had advanced to the preceding carrier. The remedy being against the carrier in whose hands the damage occurred."

This is the law as laid down and recognized in the cases of Merrick v. Gordon, 20 N. Y. 93; New York Central & H. R. R. R. Co. v. Weil, 65 Misc. Rep. 179, 119 N. Y. Supp. 676; Sumner v. Walker (D. C.) 30 Fed. 261; Johnson-Brown Co. v. D. L. & W. R. R. Co. (D. C.) 239 Fed. 590. If, however, the common law supported another or different doctrine, it would be superseded by the provisions of the Carmack Amendment above quoted. See opinion of Mr. Justice Lurton in Adams Express Co. v. Croninger, 226 U. S. 505, 33 Sup. Ct. 152, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257. Justice Lurton, after referring to the difficulties embarrassing shippers before the passage of the Carmack Amendment, then said:

“The congressional action has made an end to this diversity; for the national law is paramount, and supersedes all state laws as to the rights and liabilities and exemptions created by such transaction.”

Continuing, Justice Lurton further said:

"That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all state regulation with reference to it."

The learned Justice continues:

"To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing federal law, at the time of his action, gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the

latter view would cause the proviso to destroy the act itself. One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for a loss or damage incurred upon the line of the former.”

See, also, Johnson-Brown Co. v. D., L. & W. R. R. Co. (D. C.) 239 Fed. 590.

We therefore conclude that the defendants' counterclaim was improperly allowed by the City Court.

[4] Is the plaintiff, however, entitled to recover for the amount sued for in this action, which includes, not only its own freight charges for the car in question, but also the amount of the charges for transportation of the Cincinnati, New Orleans & Texas Pacific Railroad Company and of the New York Central Railroad Company, the items of which have been previously stated in this opinion. The bill of lading provides that, "The owner or consignee shall pay the freight

and all other lawful charges accruing on said property, and if required shall pay the same before delivery."

This constituted the contract between the shipper or owner with the railroad companies. The defendants became the owners of the strawberries shipped, and, ordering a diversion of the car to Toronto over the Grand Trunk line, obligated themselves to pay all these freight charges. Of course, the Grand Trunk in turn became accountable to the prior carriers for the collection and payment to them of their charges for transportation. So we think the Grand Trunk Railway Company had in this case a clear cause of action for these charges against the defendants.

[5] The only fairly debatable question upon the facts presented is whether the right of recovery extended to the charges of the New York Central for $51.12, in view of the fact that the defendants claim, by reason of the Central's failure to deliver the car in time to catch the 427 train, they suffered damage in excess of any amount due for freight. If the New York Central Railroad Company were suing to recover this $51.12 for freight, then under the authority of Pennsylvania Railroad Co. v. Bellinger, 101 Misc. Rep. 105, 166 N. Y. Supp. 652, the defendants might counterclaim their damages, owing to the alleged failure of the road to deliver the car in time for train 427. The Central is not suing, but the Grand Trunk is, and for moneys it became the Grand Trunk's duty to collect, and which the defendants agreed to pay on the delivery of the car, and which sum the plaintiff alleges it has paid to the Central Railway Company.

We think that, under the circumstances, the plaintiff is entitled to recover all freight charges, that of the New York Central included. Such a holding seems to be in conformity with the decisions. N. Y. Central & H. R. R. Co. v. Weil, 65 Misc. Rep. 179, 119 N. Y. Supp. 676; Merrick v. Gordon, 20 N. Y. 93; Travis v. Thompson, 37 Barb. 236. Such a recovery does not preclude the defendants from bringing an action directly against the Central to recover such damages as they can show they have legally sustained by reason of its failure to

(182 N.Y.S.) keep its agreement for the delivery of the car in question to the Grand Trunk in time to be attached to train 427.

These considerations lead this court to the conclusion that the judgment appealed from should be reversed. The City Court Act empowers this court, not only to reverse, but to render such a judgment on the facts as justice and law requires.

The judgment in favor of the defendants and against the plaintiff is therefore reversed and set aside, and in its place and stead an affirmative judgment in favor of the plaintiff against the defendants is directed for the sum of $238.42, with interest thereon from the 15th day of August, 1916, together with costs to be taxed.

So ordered.

(191 App. Div. 689)

BRUGGEMANN V. BRUGGEMANN. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Divorce Ew213—Wife living in same house as husband held not entitled

to temporary alimony.

Where wife and child, at time of wife's divorce action, were living in same house as husband, and there was no proof, on application for tempo. rary alimony, that such residence was involuntary, or that they were not afforded maintenance according to their station in life, wife was not en

titled to temporary alimony. 2. Divorce Om225Wife held entitled to counsel fee.

In wife's action for limited divorce, where husband intends to raise the question of jurisdiction at the trial, wife was entitled to a counsel fee, though at time of application she lived in same house as husband, and

there was no proof of failure to receive proper maintenance. 3. Divorce On 108—Question of jurisdiction may be raised at trial.

Husband, being sued for limited divorce, may raise question of jurisdiction at the trial.

Appeal from Special Term, Kings County.

Action by Constance V. Bruggemann against August Bruggemann. From an order requiring defendant to pay to plaintiff counsel fee and alimony during the pendency of the action, defendant appeals. Affirmed, as modified.

Argued before JENKS, P. J. and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

Frederick F. Neuman, of New York City (Franklin Waldheim, of New York City, on the brief), for appellant.

Abner Greenberg, of New York City, for respondent.

JENKS, P. J. This action is for a limited divorce for cruel and inhuman treatment. The Special Term made an order for temporary alimony of $40 a week and for a counsel fee of $250.

[1-3] When the plaintiff made this application she and her tender infant were living in her husband's house, where her husband lived also. It is true that the woman deposes that she had been ordered to "get

out” of her home; but she is not corroborated, and Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

she does not specify either time or circumstance. If such an order was given, evidently she felt secure to disobey it; and for aught that appears her stay is voluntary and neither degrading nor dangerous. If the affidavit of her husband is to be credited, her abode in the home is agreeable to him, aside from its effect upon this litigation or the saving of his money. There is no proof that the woman and the child are not afforded maintenance in this house according to the station of life of the parties. The purpose of alimony is support. Turner v. Woolworth, 221 N. Y. 429, 117 N. E. 814. It should be denied in this case.

Smith v. Smith, 92 App. Div. 442, 87 N. Y. Supp. 137. I do not advise a denial of any counsel fee especially as the defendant intends to raise the question of jurisdiction, which he may do at trial (Gray v. Gray, 143 N. Y. 354, 38 N. E. 301); but I think that only $100 should be allowed.

The condition of the Special Term calendar affords a trial forthwith, if both parties are anxious for a disposition of the issue upon the merits. venture the opinion, formed upon the papers, that mutual forbearance and concession might restore harmony in this home, and keep the parties out of the divorce court. It is hard to credit that the single act of violence specified in the complaint, accompanied by the words alleged, occurred on the very day that the wife bore the infant child which is the sole issue of the marriage. Such deed and words are not natural to the husband as he reveals himself in his affidavit, which strikes me as frank and truthful.

The order is modified, by striking out the provision for alimony pendente lite, and by allowance of a counsel fee of $100 only, without costs to either party. All concur.

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W. N. STEVENSON & CO., Inc., v. VIETOR et al. (Supreme Court, Special Term, New York County. May 19, 1920.) 1. Pleading Em192 (4)-Hypothetical answer is demurrable.

An answer alleging that, if any contract was made, which defendants deny, one term thereof required plaintiff to pay an increased price, is hypothetical, and is insufficient in law on its face, and is subject to de

murrer.

2. Pleading em 194 (1)—Denial of contract held insufficient to save hypotheti

cal answer.

In an answer alleging that, if any contract was made, which defendants deny, for the delivery of goods, its terms differed from those alleged by plaintiff, the denial is neither a general nor special denial, such as is authorized by the Code, and is therefor insuflicient to make the answer good as against demurrer.

Action by W. N. Stevenson & Co., Incorporated, against Carl Vietor and others. On demurrer to the separate defenses contained in the answer, brought on by the plaintiff as a contested motion. Demurrer sustained.

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

1

(182 N.Y.S.) Austin, McLanahan & Merritt, of New York City (H. Preston Coursen, of New York City, of counsel), for the motion.

Rosenberg & Ball, of New York City (George G. Ernst, of New York City, of counsel), opposed.

GIEGERICH, J. [1] The question presented by this demurrer, which has been brought on for trial as a contested motion, is whether a hypothetical defense is bad against a demurrer for insufficiency. The complaint alleges that the defendants sold to the plaintiff certain goods, but failed to deliver them, and demands damages. The answer denies each and every allegation of the complaint, except the incorporation of the plaintiff and that the defendants are copartners, and then, for a separate defense, alleges that during the course of certain negotiations the defendants delivered to the plaintiff a memorandum, a copy of which is set forth in the complaint, and that at that time the goods which were the subject of negotiation, and which were referred to in the memorandum, were not in existence, but were to be manufactured, and “that if any contract was made between the plaintiff and defendants for the delivery of such goods, which defendants deny, one term thereof was that, if the cost of manufacturing such goods should be increased by reason of an increase in the cost of labor entering into the production thereof, then the price to be paid by the plaintiff therefor should be increased by the amount of any such increased cost of manufacturing,” and that there was such an increased cost, and that the plaintiff refused to pay such increase and that the defendants were therefore released from their obligation, if any, under the alleged agreement. The briefs cite decisions for and against the proposition that a hypothetical defense is demurrable for insufficiency. There seems to be no disagreement among the authorities that such hypothetical pleading is bad pleading, but there is a difference as to whether or not the defect can be reached by demurrer. In Stroock Plush Co. v. Talcott, 129 App. Div. 14, 113 N. Y. Supp. 214, the cases were cited and discussed and the conclusion was reached that a defense which is not positive, but only contingent or hypothetical, is insufficient in law on its face, and therefore subject to demurrer.

[2] I am not overlooking the fact, which is not discussed at all in the briefs, that this defense contains something that at first glance looks like a denial; but I do not think that a denial of “any contract” for “such goods” is either a general or specific denial such as is authorized by the Code, and is therefore ineffectual to save the defense, otherwise insufficient, against the demurrer.

The plaintiff's motion to sustain its demurrer is therefore granted, with $10 costs, with leave to the defendants to amend upon payment of such costs. Settle order on notice.

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