Opinion
January 26, 1944.
Action by Bush Terminal Buildings Company against Bush Terminal Railroad Company for breach of contract to provide and operate freight cars for transportation of freight without a rehandling between shipping platforms of plaintiff's buildings and other designated points. On defendant's motion to dismiss the complaint.
Motion denied.
Charles E. Cotterill, of New York City (Abner J. Grossman, of New York City, of counsel), for plaintiff.
Hays, St. John, Abrarnson Schulman, of New York City, for defendant.
Motion to dismiss the complaint herein as insufficient in law. The allegations of the complaint may be summarized as follows: Plaintiff owns sixteen large industrial buildings in the Borough of Brooklyn, ten of which are located on the easterly side of Second avenue between Thirty-second and Thirty-seventh streets, which extend back to the building line on the westerly side of Third avenue. These buildings involve a capital outlay of some seven million dollars and yield an annual revenue to the plaintiff of about two million dollars. They are occupied by tenants whose businesses require transportation facilities furnished by the defendant, which operates a freight railroad extending from the centre line of Twenty-eighth street and Second avenue, southerly along Second avenue to Forty-first street, thence westerly along Forty-first street to First avenue, and thence southerly along First avenue to Sixty-fifth street. The railroad is operated under a franchise obtained from the City of New York on January 31, 1905, for a period of twenty-five years, and a renewal thereof for a further period of twenty-five years from December 13, 1935. The ten buildings referred to above were erected after the grant of the original franchise. Spurs were erected by the plaintiff connecting the shipping platforms of the said buildings to the defendant's line of tracks, pursuant to a contract between plaintiff and defendant dated April 26, 1911. The contract, which is to remain in effect during the term of the defendant's franchise and any renewal thereof, provides, among other things, that the defendant "will reasonably provide and will properly operate adequate cars and motive power for the transportation of freight without a rehandling of the same directly between the shipping platform or platforms of each such model loft building, and the piers, warehouses and property of" the plaintiff herein. The tenants of the ten buildings aforesaid depend "vitally in their businesses upon the transportation facilities so to be furnished by the defendant," and that by reason of the fact that the method of handling their shipments "is in many respects more convenient and cheaper than any other methods available to tenants of plaintiff either at plaintiff's buildings or than would be available to them were they located in any other comparable space in the City of New York," plaintiff is able to maintain the buildings at a considerable profit. The contract between plaintiff and defendant places plaintiff's loft buildings in a location which makes them unique and creates a demand by tenants for space therein because defendant's tracks are connected to the shipping platforms of such buildings by sidings, thus making possible direct rail receipts and shipments by these tenants without rehandling. It is alleged further that despite the provisions of the contract the defendant is wholly failing and refusing to provide and operate freight cars and railroad locomotive power for the transportation of approximately 50 per cent. of the less than carload shipments of freight of the tenants of said building, and defendant threatens and has announced its intention to fail and refuse to furnish any freight car service whatsoever at such buildings for any amount of such less than carload freight, and that in consequence thereof the special value of plaintiff's said loft building facilities is being impaired, and for all of which plaintiff has no adequate remedy at law. The prayer for relief asks for specific performance of the contract.
The gravamen of the complaint is that the defendant fails and refuses to provide transportation service as required by the contract with respect to approximately 50 per cent of less than carload shipments and threatens to withhold all transportation service in the future with respect to less than carload shipments. The contract makes no distinction between carload shipments and less than carload shipments, and from the complaint alone no such distinction may be discerned. The pleaded conclusion that defendant has breached its contractual undertaking and threatens to continue such conduct in the future finds support in the ultimate facts stated.
Defendant contends that the principal issue tendered by the complaint is a matter solely of administrative consideration and regulation and not one for judicial determination in the first instance. More specifically, the contention is that enforcement of the contract in the manner requested by the plaintiff would result in a special privilege to the plaintiff, not available to comparable buildings in the City of New York and one which may not only be contrary to public convenience and necessity but also discriminatory, and that these questions must be determined by the Interstate Commerce Commission or possibly by the Public Service Commission of this state.
Standing alone the contract discloses nothing of a discriminatory character. It merely provides for freight car service over spurs and side tracks to and from shipping platforms at given buildings. The statement in the complaint that plaintiff's tenants, by virtue of the contract in suit, enjoyed a more convenient and cheaper method of handling shipments than would be available to them in other comparable space in the City of New York and that the contract places plaintiff's buildings in a location which makes them unique because of the connection by sidings between plaintiff's shipping platforms and the defendant's railroad does not necessarily involve discriminatory practices as between shippers of the defendant. In other words, it may not be inferred from the complaint alone that the contract benefits enjoyed by the plaintiff are not open to all other shippers of the defendant in the same situation. It follows that no question is raised at the present time concerning discriminatory practices within the meaning of section 3, subdivision 1, of the Interstate Commerce Act, 49 U.S.C.A. § 3(1), or section 32 of the Public Service Law of this state.
Defendant contends further that the complaint raises a question concerning the method by which the defendant shall conduct its transportation business and that this calls for the exercise of regulatory functions by the Interstate Commerce Commission or by the Public Service Commission of this state. It is suggested that plaintiff is questioning defendant's method of distribution of an inadequate supply of cars and that this presents an administrative rather than a judicial question. Morrisdale Coal Co. v. Pennsylvania R.R., 230 U.S. 304, 312-314, 33 S.Ct. 938, 57 L.Ed. 1494. Here again defendant reads into the complaint facts not therein stated and inferences not fairly to be drawn. There is not a word in the complaint indicating that defendant's failure and refusal to furnish the required freight car service is the result of the defendant's method of distributing an inadequate supply of cars. Nor is there anything in the complaint which may be said to attack the reasonableness of the defendant's general practice. cf. Pennsylvania R.R. v. Puritan Coal Co., 237 U.S. 121, 131, 132, 35 S.Ct. 484, 59 L.Ed. 867.
Plaintiff's cause of action is a relatively simple one. It proceeds on the claim that in violation of its contractual duty defendant fails and refuses to furnish freight cars with respect to approximately 50 per cent. of the less than carload shipments and threatens to discontinue freight car service with respect to all less than carload shipments. Whether or not the transportation service called for by the contract was and is being "reasonably" provided presents a question of fact at this stage of the proceeding for judicial determination and not an issue for administrative regulatory control.
That the court in its discretion may ultimately withhold the remedy of specific performance on the ground that it may involve too complicated a problem of judicial superintendence over an extensive period of time does not affect the sufficiency of the complaint and may not be taken advantage of on the motion to dismiss. Standard Fashion Co. v. Siegel-Cooper Co., 157 N.Y. 60, 67, 68, 51 N.E. 408, 410, 43 L.R.A. 854, 68 Am.St.Rep. 749.
The motion is accordingly denied.