
    Oscar H. Willson, Appellant, v. American Railway Express Company, Respondent.
    
      Carriers — conversion — action to recover for conversion of goods shipped by express —failure to comply with agreement of agent to divert car thereby adding materially to express charges by reason of which consignee refused to accept shipment — defense that diverting car would be violative of rules and rates approved by Interstate Commerce Commission.
    
    
      Willson v. Am. Ry. Express Co., 204 App. Div. 59, affirmed.
    (Argued October 16, 1924;
    decided November 25, 1924.)
    Appeal, by permission, from a judgment, entered January 19, 1923, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment of the Niagara County Court, which modified and affirmed as modified a judgment of the City Court of Lockport in favor of plaintiff, and directing a dismissal of the complaint and judgment in favor of defendant upon its counterclaim. The action was brought to recover damages in conversion for failure of the defendant to deliver at Lexington, Ky., a shipment of cantaloupes from Horatio, Ark., to Terre Haute, Ind., and from Terre Haute, Ind., to Lexington, Ky. The defendant, in its defense, denied liability for this amount and interposed a counterclaim for an amount representing the difference between the freight rates from Horatio, Ark., to Terre Haute, Ind., and from Terre Haute to Lexington, Ky., and the amount realized by the defendant from the sale of said shipment. It is undisputed that defendant’s local agent informed plaintiff that the car might be diverted from Terre Haute to Lexington and that plaintiff so directed and that, nevertheless, the car was reconsigned, adding materially to the express charges, by reason of which the consignee refused to accept the shipment. The defense was that the car could not be diverted under the tariff rates and rules approved by the Interstate Commerce Commission and in force at that time, and that any agreement to divert the car in violation of the rates and rules on file with said Commission was void and not binding upon the defendant.
    
      
      Montford C. Holley for appellant.
    
      Percy R. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Pound, J.  