true that the attendance of a witness to be examined before trial cannot be compelled without the service of a subpoena, any more than his attendance at the trial could be, but whether the double service of notice and subpœna is required for the examination of an adverse party is not yet settled by authority. It is intimated in Norman Oil Corporation v. Bensabat, 118 Misc. Rep. 398, 194 N. Y. Supp. 359, that the failure to serve the subpoena renders the notice a nullity, but in Bloch v. Guaranty Trust Co. of New York, 119 Misc. Rep. 832, 198 N. Y. Supp. 305, the contrary view is expressed, and the party was put under a disability until he submitted to examination.

That, however, is of secondary importance, for, if the first notice is a nullity, it can be immediately followed by a new notice, accompanied by a subpoena, and we would be met by a new motion, in which the primary question must be determined, which is: What is the meaning of the term "adverse party," as used in section 288? The claim of the moving party is that, as he has not answered, but is in default, no issues have been framed as to him, he is not such adverse party, and that his testimony is neither material nor necessary in the prosecution of the action against him; that if his testimony is desired for the trial of the issues raised by the answer of his codefendant, and for the prosecution of the action against such codefendant, it must be had in the ordinary way at the trial, unless the particular circumstances exist which permit of the examination of a witness before trial.

This question does not seem to have been passed upon by the courts since the adoption of the Civil Practice Act. This act lays down an entirely new practice in the matter of examinations before trial, the object and purpose of which is "to remove from proceedings of this character all procedural trammels and to permit examinations of adverse parties with as few restrictions as possible." Buehler v. Bush, 200 App. Div. 206, 191 N. Y. Supp. 848. The changes relate more to the practice than to the substantive rules upon which the remedy is based. Norman Oil Corporation v. Bensabat, 118 Misc. Rep. 398, 194 N. Y. Supp. 359. Where the new act continues phrases from the old act, which it supersedes, that have been judicially construed, such cases are of value in determining the meaning of those phrases as used in the Practice Act. Section 288 of the Civil Practice Act provides that: "Any party to an action in a court of record may cause to be taken by deposition, before trial, his own testimony or that of an adverse party."

The former practice was contained in section 870 of the Code of Civil Procedure, which reads:

*

"The deposition of a party to an action pending in a court of record may be taken at his own instance or at the instance of an adverse party, or of a coplaintiff or codefendant at any time before or during the trial."

In a case precisely like this, where the real issue was as to whether a copartnership existed, it was held that, under section 870 of the Code, an examination could not be had of a defendant, who by failure to answer had made default, at the instance of the plaintiff. Sharp v. Hutchinson, 48 N. Y. Super. Ct. (16 Jones & S.) 101. That this is the proper construction to be given to this phrase is emphasized by

(202 N.Y.S.)

those cases which hold that an examination cannot be had until issue is joined. Welsh v. Cowles Shipyard Co., 200 App. Div. 724, 193 N. Y. Supp. 355; Psaroudis v. Markowitz, 201 App. Div, 512, 194 N. Y. Supp. 463; N. London, Inc., v. Nassau Smelting Works & Refining Works, 201 App. Div. 842, 193 N. Y. Supp. 944.

As no issues are framed against a defaulting defendant, he is no longer a party litigant, and cannot be said to be an adverse party. I therefore hold that section 288 of the Civil Practice Act does not confer upon a plaintiff the right to take the testimony before trial of a defendant who has made default in answering, for the purpose of prosecuting the action against a codefendant who has answered, unless the circumstances are present which permit the examination of any person as a witness before trial.

[2] It does not appear that notice of taking this deposition was given to the answering defendant. The notice is not addressed to him or to his attorneys. The taking of the testimony would be but an idle ceremony, in so far as its use by the plaintiff at the trial is concerned (Civil Practice Act, § 303), and can be no more than a "fishing excursion," which should not be allowed, even under the new practice.

The primary purpose of taking depositions is for use as testimony at the trial, and while it has a secondary use in putting the parties in possession of the facts of the case, and thereby prevent surprise at the trial, when it appears that such is its sole object, it should not be permitted unless the statute clearly authorizes it.

The motion to vacate the notice of taking of testimony is granted, with costs. Ordered accordingly.

(207 App. Div. 442)

STEVENS v. ATCHISON, T. & S. F. RY. CO.

(Supreme Court, Appellate Division, First Department. December 14, 1923.) 1. Carriers 188-Freight earned, though connecting carrier refused to accept goods.

Where a railroad tendered cotton, which had been damaged by fire and water while waiting to be unloaded, to a connecting steamship company, which refused to accept it, the shipper's contention that there was no delivery to the steamship company, and that the freight was therefore not earned, was without merit, in view of the fact that there was no claim against the railroad in relation to the damage.

2. Carriers 30-Through rate to foreign port invalid, unless published and filed.

Under Act Cong. Feb. 4, 1887, entitled "An Act to Regulate Commerce," and amendments thereto (U. S. Comp. St. § 8563 et seq.), requiring carriers to file schedules of all rates between points on their own routes and points on the route of any other carrier, a carrier which had never published or filed a through rate to a foreign port could not make a through rate to such port, which would be payable as one entire amount on delivery to such port, so as to impose a duty on the railroad. 3. Carriers 30-Agreement for services not provided for in schedules places no duty on carrier.

Under Act Cong. Feb. 4, 1887, entitled "An Act to Regulate Commerce," as amended (U. S. Comp. St. § 8563 et seq.), a railroad engaged in interstate commerce cannot agree on a higher or lower rate, nor assume any For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

additional services or burden, than that appearing in its published and filed schedules, and the assumption of any additional service imposes no duty on the railroad, unless published and filed.

4. Carriers 188-Bill of lading providing for through transportation to foreign port construed.

An export bill of lading providing for the carriage of goods to San Francisco and thence by steamship to Japan at a charge of $1.85 per 100 pounds, made up of the inland rate of 95 cents, and the ocean rate of 90 cents per hundredweight, should be given effect by construing the provision as contemplating two separate stages of transportation, rather than as providing for an indivisible contract, which would be invalid under Act Feb. 4, 1887 (U. S. Comp. St. § 8563 et seq), because the through rate was not published and filed.

Submission of controversy, under Civil Practice Act, §§ 546, 547, on an agreed statement of facts, between William Stevens and the Atchison, Topeka & Santa Fé Railway Company. Judgment directed. for defendant.

Argued before CLARKE, P. J., and DOWLING, MCAVOY, and MARTIN, JJ.

Bigham, Englar & Jones, of New York City (George S. Brengle, of New York City, of counsel), for plaintiff.

A. S. H. Bristow, of New York City, for defendant.

MARTIN, J. The court is asked to determine the rights of the parties to moneys held by disinterested third persons, Johnson & Higgins, brokers of San Francisco, Cal. The claim of defendant, the Atchison, Topeka & Santa Fé Railway Company, is that the fund is due to it for the transportation of cotton from various points in Texas to San Francisco, Cal. Plaintiff's claim is as shipper and owner, he being the assignee of the Japan Cotton Trading Company, which shipped from said points 500 bales of cotton consigned to Kobe, Japan, by way of San Francisco, Cal., to be delivered at Kobe to the shipper's order. The cotton was delivered by the shipper to the Gulf, Colorado & Santa Fé Railway Company, which issued export bills of lading covering the shipments from points in Texas to Kobe, Japan, by way of San Francisco, Cal.; the charge therefor, $1.85 per 100 pounds, being indicated in the bills of lading as made upon an inland rate of 95 cents per 100 pounds, and an ocean rate of 90 cents per 100. The bills of lading contain a clause, of which the following is typical:

"To be carried to the port (A) of San Francisco, Cal., and thence by steamship Shinyo Maru II to the port (B) Kobe, Japan (or so near thereto as ship may safely get, with liberty to call at any usual port of call), and to be there delivered as above consigned or to another carrier on the route to destination, if consigned beyond said port (B), upon payment, immediately on discharge of the property, of the freight thereon at the rate from Brady, Texas, to Kobe, Japan, of one hundred eighty-five cents, United States gold currency, per one hundred pounds gross weight, and advanced charges.

The cotton was duly transported over the lines of the Gulf, Colorado & Santa Fé Railway Company, the Panhandle & Santa Fé Railway Company, and the defendant, to San Francisco, Cal., and the cars containing it were placed by the defendant railway company on Pier No. 46 in San Francisco, which was the wharf at which the steamer menFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

tioned in the bills of lading discharged and loaded its cargoes. While the cars were standing on the pier, and before the cotton was unloaded therefrom and delivered to the Steamship Company, the, cotton was seriously damaged by fire occurring on said Pier 46 on June 4, 1916, and by water used to extinguish the fire. Twelve bales of the cotton were destroyed, and 488 were salvaged. Those salvaged were unloaded from the cars by the defendant in a badly damaged condition, and tendered to the steamship company; but the steamship company refused to accept the salvaged cotton for transportation from San Francisco, Cal., to Kobe, Japan, on the ground that its further transit would endanger the ship because of the danger of spontaneous combustion. The defendant railway company thereupon tendered the salvaged cotton to the owner, demanding that it be accepted and that the freight charges for the inland transportation be paid. The owner refused to accept the damaged cotton and demanded that it either be transported to Kobe, Japan, as provided in the bills of lading, or that it be delivered at San Francisco, Cal., without the payment of any freight charges whatsoever.

It is agreed that, if the cotton had been held for a longer period of time, it not only would have been susceptible to further damage by fire occurring from spontaneous combustion, but would have deteriorated otherwise, and further depreciated in value. Under the circumstances, and pursuant to the agreement of those concerned, it was sold to avoid further loss, without prejudice to the rights of any party; it being also agreed that the proceeds of the sale, less an amount sufficient to pay the freight charges, claimed by defendant for inland carriage of the 488 salvaged bales, should be turned over to the owner of the cotton, and that the balance should be held by a disinterested third person. The present action is brought to determine whether plaintiff or defendant should receive the sum so held.

According to the freight tariff which is applicable, the rate for the transportation of this cotton to San Francisco, Cal., from the inland. points referred to, is 95 cents per 100 pounds. The submission states that:

"No claim is made against the defendant herein for the damage to said cotton, and the only question in controversy is as to the right of said defendant to freight charges as hereinafter set forth."

Plaintiff contends that the bills of lading issued by the carrier in the first instance were through bills of lading, and constituted single, indivisible contracts for the entire transportation from the point of origin to the point of ultimate destination, though they provide for transportation by successive carriers; that the freight was payable only in toto on delivery of the cotton at Kobe, Japan; that, as the cotton was never delivered at its destination, no freight was earned, and none became payable; and that plaintiff is therefore entitled to the fund. Plaintiff further argues that defendant is not entitled to the freight charges, because, as plaintiff contends, the inland rail carriage had not been completed by defendant, inasmuch as the cotton, at the time of the fire, had not been delivered to the steamship, but was still in the possession of defendant railroad and in its care.

Defendant contends that, by virtue of the Act of February 4, 1887, 24 Stat. 379, entitled "An Act to Regulate Commerce," and acts supplementary thereto (U. S. Comp. St. § 8563, et seq.), and under the tariffs established in accordance therewith, the initial carrier was without power to agree for the transportation of said cotton to Kobe, Japan, at any rate, there being no published tariff for the carriage, and that, if the bill of lading can be construed as providing for one indivisible charge of $1.85 from said inland points to Kobe, by way of San Francisco, then its provisions to that extent are void as contravening the provisions of said statute. Defendant also contends that the inland rail service was fully rendered and completed with respect to the 488 bales which were salvaged.

[1] There being no claim against defendant in relation to the damage to the cotton, and defendant having unloaded the 488 bales, and having tendered them to the steamship company and to the owner, we can dismiss, as without merit, plaintiff's assertion that the inland freight service as to the salvaged bales had not been completely rendered by defendant. In view of the facts set forth in the submission, we must regard the statement therein to the effect that the cotton "was never delivered to the steamship company" to imply nothing more than that such company never took actual delivery.

[2] The question which remains, as asserted in the submission, is whether "the freight was payable only in toto upon delivery of the cotton at Kobe, Japan"; that is, whether we must hold that no freight was earned or became payable because it was never so delivered. I believe that defendant has established that the initial carrier was without power to agree for the transportation of the cotton at an inland rate payable only upon delivery at Kobe; and that, as so construed, the provisions of the bill of lading would be "inconsistent with the published tariffs and classifications.' In Southern Railway Co. v. Reid, 222 U. S. 424, at page 441, 32 Sup. Ct. 140, at page 144 (56 L. Ed. 257), it is pointed out that:

Schedules of rates, whether the road be single or forms with another a 'through route,' must be established, filed and published, designating the places. They cannot be changed without permission of the Interstate Commerce Commission, and no carrier is permitted to engage or participate in the transportation of passengers or property unless the rates for the same have been so filed and published. Criminal punishments are imposed for violations of these requirements, and civil redress of injuries received by shippers is given through the Interstate Commerce Commission."

From the only tariff provisions relative to the rate of freight and to the payment of freight charges which were applicable to either domestic or export shipments of baled cotton moving from Texas points, including those points from which the cotton involved in the suit was shipped, to San Francisco, California, or to said Pier 46 in said city, it is here established that no through rate was published or filed from said inland points to Kobe, Japan. Furthermore, none was published which was to be payable, as one entire and indivisible amount, only on delivery at Kobe. Therefore the initial carrier could not make any such through rate without violating the Interstate Commerce Law. In J. H. Hamlen & Sons Co. v. Illinois Central R. R. Co. (D. C.) 212