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(202 N.Y.S.) Fed. 324, it was held that, as the defendant in that case "had never published or filed with the Interstate Commerce Commission a through rate to Buenos Aires, it was neither required nor could it make a through rate without violating the Interstate Commerce Law.”

(3] A railroad company, engaged as an interstate common carrier cannot agree on a raie higher or lower or different than that appearing in the filed schedules. See Interstate Commerce Act (24 Stat. 380, 381) § 6, as amended by Hepburn Act (34 Stat. 586, 587) § 2. See, also, Elkins Act, being 32 Stat, 847, c. 708, as amended by Hepburn Act (34 Stat. 587, 588), § 2; Interstate Commerce Act (24 Stat. 380) § 3. Such rate here was 95 cents for the inland carriage. There could be no valid agreement making an additional service or burden, assumed by the rail carrier, a consideration for obtaining the shipment at that rate. For it the initial carrier here could agree to carry the freight over the stipulated inland route; but for it there could not legally be an agreement to do anything more. That it did contract for something more is plaintiff's contention, for plaintiff's position is that the inland carriage was not to be paid for, unless the ocean voyage was completed. Substantially he say, the initial carrier agreed, for the filed rate, both to carry the cotton to San Francisco and to guarantee its carriage to Kobe, Japan, under penalty of losing all compensation for the inland carriage, if the additional service, the guaranty, was not performed.

That such an additional burden imposes no duty on the railroad is shown by the case of Chicago & Alton Railroad Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501. It was there held that an agreement to expedite a particular shipment is a burden additional to the freight service for which the rate had been published, and that, inasmuch as no rate had been made and published for assuming such additional service, no relief could be had on the contract for it. The rates furnished the shipper were the regularly published rates. They did not provide for an expedited service. In the opinion (225 U. S. at pages 164, 165, 32 Sup. Ct. at page 650 [56 L. Ed. 1033, Ann. Cas. 1914A, 501]) it is said:

"The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when the action is for a breach of a contract to carry within a particular time, or to make a particular connection, or to carry by a particular train. The railroad company, by its contract, became liable for the consequence of a failure to transport according to its terms. Evidence of diligence would not excuse. If the action had been for the common-law carrier liability, evidence that there had been no unreasonable delay would be an answer. But the company, by entering into an agreement for expediting the shipment, came under a liability different and more burdensome than would exist to a shipper who made no such special contract. For such a special service and higher responsibility it might clearly exact a higher rate. But to do so it must make and publish a rate open to all. This was not done."

It is also said (225 U. S. at page 165, 32 Sup. Ct, at page 650 [56 L. Ed. 1033, Ann. Cas. 1914A, 501]):

"An advantage accorded by special agreement, which affects the value of the service to the shipper and its cost to the carrier, should be published in the tariffs, and for a breach of such a contract relief will be denied, because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage, in that it is not one open to all others in the same situation."

These views make it unnecessary for us to further consider the arguments centering round plaintiff's contention that the bills of lading constitute "single, indivisible contracts of carriage upon which freight could be earned only on delivery of the goods at ultimate destination.”

[4) Moreover, we believe the bills of lading are not necessarily to be regarded as an attempt to contravene the statutes. They can be given full effect, by regarding their provisions as contemplating two separate stages of transportation. The instruments provide that the cotton is "to be carried to the port (A), of San Francisco, Cal., and thence to the port (B), Kobe, Japan.

One of these was the inland transportation, for which the rate is stated in the bills of. lading to be 95 cents per 100 pounds, and the other the ocean carriage, for which the rate of 90 cents per 100 pounds is likewise stated. Assuming that documents like these might ordinarily be construed as plaintiff would have us construe them, nevertheless they are susceptible to a construction in no way violative of the provisions of the statutes mentioned. The latter construction should be adopted in preference to the former, which would imply that it was intended to avoid the restrictions imposed by law.

Judgment should accordingly be directed for defendant for $2,460 and costs. Settle order on notice. All concur.

(207 App. Div. 833)

JOY V, URBAN MOTION PICTURE INDUSTRIES, Inc. (Supreme Court, Appellate Division, Second Department. October 26, 1923.) Pleading m52(2)-Causes of action for services and for breach of contract

should be separately stated.

Where a complaint alleged a cause of action for the amount due to plaintiff for services rendered between stated dates and a cause of action for defendant's breach of a contract, a motion to separately state and number the causes of action will be granted.

Action by Henry W. Joy against the Urban Motion Picture Industries, Inc. From an order denying defendant's motion to separately state and number causes of action alleged in the complaint, defendant appeals. Order reversed on the law, and motion granted.

PER CURIAM. The complaint sets up two causes of action, one for the amount due to the plaintiff for services rendered from December 25, 1922, to April 21, 1923; the other for damages alleged to have been caused by the defendant's breach. Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; Carlson v. Albert, 117 App. Div. 836, 102 N. Y. Supp. 944. The order denying defendant's motion to separately state and number the causes of action is therefore reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs.

KELLY, P. J., and RICH, MANNING, KELBY, and YOUNG, JJ., concur.

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

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(202 N.Y.S.) (207 App. Div. 833)

KRAFT V. STILES & MERRIAM, Inc. (Supreme Court, Appellate Division, Second Department. October 26, 1923.) Libe) and slander 123(10)-Question of punitive damages for jury, where article libelous per se.

Where the article complained of was libelous per se, the court erred in charging that there was no question of actual malice in the case, and that punitive damages could not be given, as that question should have been left to the jury. Action by William D. Kraft against Stiles & Merriam, Inc. Judgment for defendant, and plaintiff appeals. Reversed on the law and the facts, and a new trial granted.

PER CURIAM. Judgment and order reversed upon the law and the facts, and new trial granted, with costs to abide the event. The article.complained of is capable of but one construction, and is libelous per se. The affidavit of Mrs. Kraft, set out in the answer, constituted no defense to the action. The only question which should have been submitted to the jury was the amount of damages to be awarded. The court erred in charging that there was no question of actual malice in the case, and that punitive damages could not be given. This should have been left to the jury. Crane v. Bennett, 177 N. Y. 106, 69 N. E. 274, 101 Am. St. Rep, 722,

KELLY, P. J., and RICH, JAYCOX, MANNING, and YOUNG, JJ., all concur.

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(Supreme Court, Appellate Division, Second Department. December 7, 1923.) Wills Com 324(4)-Evidence held insufficient to go to jury on question of want of

publication,

In a will contest, evidence held insufficient to present an issue of fact for the jury as to want of publication,

Kelby and Kapper, JJ., dissenting.

Appeal from Surrogate's Court, Kings County. In the matter of the petition of Anna Barbara Bennett to prove the will of Frank Bennett, deceased. From a decree admitting the will to probate, contestants appeai. Affirmed.

Argued before KELLY, P. J., and MANNING, KELBY, YOUNG, and KAPPER, JJ.

Thomas J. O'Neill, of White Plains (Adolph Ruger, of Brooklyn, and Leonard F. Fish, of New York City, on the brief), for appellant.

Herbert T. Ketcham, of Brooklyn, for respondent.

PER CURIAM. Decree of the Surrogate's Court of Kings County, admitting will to probate, affirmed, with costs. We think that the evidence presented no real issue of fact as to the publication of the will. Matter of Burnham, 201 App. Div. 621, 194 N. Y. Supp 811,

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

affirmed 234 N. Y. 475, 138 N. E. 413. Therefore the surrogate properly directed a verdict.

KELLY, P. J., and MANNING and YOUNG, JJ., concur.
KELBY, J., dissents, and reads for modification.

KELBY, J. (dissenting). The appeal in this proceeding was entered after a second trial before the surrogate and a jury. Upon the former trial the surrogate directed a verdict in favor of the proponent upon the litigated questions of testamentary capacity and undue influence, and submitted to the jury for their determination the sole question of the due execution of the will. The jury found that the will was not duly executed, and a motion was made to set aside the verdict. This was denied at the close of the trial, but upon reargument it was granted, and a new trial ordered. The order granting a new trial was directed to be solely upon the following question:

"Was the paper writing of date May 3, 1919, propounded by the petitioner herein as the last will and testament of Frank Bennett, deceased, duly executed ?"

The contestants appealed from that order, which was unanimously affirmed by this court. 201 App. Div. 860, 192 N. Y. Supp. 915.

Upon the trial now under review, at the close of the evidence, the proponent moved for the direction of a verdict that the will was duly executed. The surrogate reserved decision upon the motion and submitted the sole litigated question to the jury, and the jury again found that the will was not duly executed. Thereafter the surrogate heard counsel on a motion to set aside the verdict as against the weight of evidence, and also upon the motion for the direction of a verdict that the will was properly executed. . From the decree entered upon the surrogate's decision directing a verdict for proponent, the contestants now appeal.

The will admitted to probate was found to have been made on May 3, 1919. Contemporaneously with the making of the will of Frank Bennett, there was also made the will of his wife, Anna Barbara Bennett, the petitioner herein. Both papers were drawn by Mr. George M. Schinzel, who supervised their execution, and who was a subscribing witness to both. Mr. Schinzel had been the attorney of Mr. Bennett for over 20 years prior to the drawing of the paper in question, and had been his personal friend. On May 3, 1919, Schinzel had been attending to some tax matters for Mr. Bennett in Staten Island, and he had an appointment to call at Mr. Bennett's house. Before Schinzel actually made the call, Mrs. Bennett called him up on the telephone and said that Mr. Bennett desired him to bring up a couple of blank wills. Schinzel thereupon attended at the home of Mr. Bennett and first transacted with him the business connected with the Staten Island property. That transaction and the following transactions relating to the alleged wills of Mr. and Mrs. Bennett all took place in the kitchen of the Bennett household. The business connected with the Staten Island property occupied about half an hour.

Testifying as to what followed, Schinzel said: "I then took these two blanks out of my pocket. * * * I said, "Now, what about these? Mrs. Bennett said, 'Frank and I want to make joint wills,

(202 N.Y.S.) giving our property to each other.' And I said, 'Is that right, Frank?" He said, 'Yes.''

Schinzel then sat down and started to draw Frank Bennett's will, using one of the blanks he had brought with him. There was nobody present at that time, except Mr. and Mrs. Bennett. Schinzel said to Bennett, “Are there any special bequests?" Bennett replied, “I want to leave something to the church." Schinzel said, "All right; how much?” Then appears the following testimony:

"And Mrs. Bennett said, 'No, I will take care of that. Frank then said, 'Well, you want me, or rather you want it provided in your will that I shall pay the church a certain amount of money, but you don't want me to put it in my will. You want me to leave it to you.' And she said, 'I will take care of it.' So I then proceeded to draw this paper, and when I arrived to the matter of the executor, I said, 'What about executor, Frank?' And he turned to Mrs. Bennett and said, 'What about making Jake an executor with you?' And she said, 'I don't want Jake. Why should I have him?' He said, 'He is a business man, and could help you or advise you, and you could go to him for advice.' And she said, 'No, I want to be executor alone. If I want any advice, I will go to him for the advice.' He then turned to me and said, 'All right, George; go ahead and let her have it her way,' or words to that effect.

I then proceeded to finish the paper. "Q. You drew it at that time in accordance with what had been told you by Mr. Bennett? A. And by Mrs. Bennett, both. I then took up the other paper, which is marked "The Last Will and Testament of Anna Barbara Bennett,' and I proceeded to draw that also, and I drew that in accordance with the directions given me at the time.

"Q. By whom? A. By Mrs. Bennett and Mr. Bennett, both together. "Q. Mrs. Bennett told you how to draw her will? A. Yes; she did.

"Q. All right. A. I then drew this up and said, 'What about witnesses?" Mrs. Bennett says, 'Do witnesses have to know what is in the paper?' I said, No; they do not.' She then said, 'Well; can my mother act as a witness?' And I said, 'Yes; but I would prefer to have outsiders.' She said, "Then I will call mother,' or 'Mom.' I think she used the word 'Mom.' I am not quite certain on that. And she went to the dumb-waiter and pulled the rope; that is, shook the rope, and called to her mother upstairs to come down.

"Q. Well, then, what took place when her mother came down? That is all that happened until the mother came down? A. No.

"Q. What happened after she called her mother? A. While Mrs. Bennett was at the dumb-waiter, calling her mother, Frank spoke to me very crossły.

"Q. What did he say to you? A. He said: 'I will sign this paper to humor her. I want Jake as an executor. I will be at your office in a day or two, and make a will appointing Jake as executor.'

"Q. That is all that he said on that subject? A. At that time.”

Mrs. Bennett came back from the dumb-waiter and again seated herself at the kitchen table. Her mother, Mrs. Nelle, then entered the kitchen from the hallway.

"Q. Was anything said between you and him [Bennett) with respect to making the will, or how to make the will, after Mrs. Bennett came back from the dumb-waiter, and before Mrs. Nelle came in? A. Nothing.

"Q. When Mrs. Nelle came in, what took place? A. I just said, 'Mrs. Nelle, Frank warts you and me to witness his signature.' And I said, 'Is that right, Frank?' And he said, Yes.'

“Q. And you did not say anything about a will? A. I did not."

*

Schinzel then took from Mr. Bennett the paper he had drawn, folded the first leaf in the middle, shutting out all of the second page, except the words "appointed to be executrix of this my last will and

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