Morse Electro Products Corp. v. Blue Ribbon Express, Inc.

Appellate Division of the Supreme Court of New York

Morse Electro Products Corp. v. Blue Ribbon Express, Inc.

43 A.D.2d 920, 352 N.Y.S.2d 891, 1974 N.Y. App. Div. LEXIS 5740

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 1974

StatusPublished

This text of 43 A.D.2d 920 (Morse Electro Products Corp. v. Blue Ribbon Express, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morse Electro Products Corp. v. Blue Ribbon Express, Inc., 43 A.D.2d 920, 352 N.Y.S.2d 891, 1974 N.Y. App. Div. LEXIS 5740 (N.Y. Ct. App. 1974).

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Opinion

Order, Supreme Court, New York County, entered May 21, 1973, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion, unanimously modified, on the law, to deny plaintiff’s motion for summary judgment, and otherwise affirmed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. Plaintiff sues to recover alleged overcharges by defendant, an interstate motor freight carrier. If the case is properly within the jurisdiction of the court, the conflicting informal letter opinions of the Interstate Commerce Commission and the National Classification Board of the Motor Carrier Industry, relied upon by the plaintiff and defendant respectively, suggest the presence of issues requiring trial. (Sill-man v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404.) In its reply brief to this court, and apparently for the first time, appellant asserts that the Interstate Commerce Commission has exclusive primary jurisdiction of this dispute and asks that the action be stayed pending a formal hearing before the Interstate Commerce Commission. Plaintiff has had no opportunity to reply to this contention and we shall not undertake to pass on its merit of timeliness (but, see, United States v. Western Pacific R. R. Co., 352 U. S. 59; TJ. S. Code, tit. 49, § 16, subd. [3]). Either party may apply to Special Term for such relief as it deems proper in the premises. Concur — Markewich, J. P., Nunez, Kupferman, Murphy and Macken, JJ.

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Order, Supreme Court, New York County, entered May 21, 1973, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion, unanimously modified, on the law, to deny plaintiff’s motion for summary judgment, and otherwise affirmed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. Plaintiff sues to recover alleged overcharges by defendant, an interstate motor freight carrier. If the case is properly within the jurisdiction of the court, the conflicting informal letter opinions of the Interstate Commerce Commission and the National Classification Board of the Motor Carrier Industry, relied upon by the plaintiff and defendant respectively, suggest the presence of issues requiring trial. (Sill-man v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404.) In its reply brief to this court, and apparently for the first time, appellant asserts that the Interstate Commerce Commission has exclusive primary jurisdiction of this dispute and asks that the action be stayed pending a formal hearing before the Interstate Commerce Commission. Plaintiff has had no opportunity to reply to this contention and we shall not undertake to pass on its merit of timeliness (but, see, United States v. Western Pacific R. R. Co., 352 U. S. 59; TJ. S. Code, tit. 49, § 16, subd. [3]). Either party may apply to Special Term for such relief as it deems proper in the premises. Concur — Markewich, J. P., Nunez, Kupferman, Murphy and Macken, JJ.

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Bluebook (online)

43 A.D.2d 920, 352 N.Y.S.2d 891, 1974 N.Y. App. Div. LEXIS 5740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-electro-products-corp-v-blue-ribbon-express-inc-nyappdiv-1974.

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