
    Pennsylvania Railroad Company, Appellant, v. Henry Nasshorn et al., Copartners Doing Business under the Name of Henry Nasshorn, Respondents.
    First Department,
    November 5, 1952.
    
      Joseph P. Allen of counsel (F. Sherwood Alexander with him on the brief; Conboy, Hewitt, O’Brien $ Boardman, attorneys), for appellant.
    
      David Kashman, for respondents.
   Per Curiam.

The trial court had jurisdiction to determine the issue in this case as to whether the merchandise shipped should have been paid for at the tariff rate for “ rags ” or, as the carrier claimed, at the higher rate for “ clothing.” In the circumstances, plaintiff’s complaint should not have been dismissed for lack of jurisdiction.

A controversy between a carrier and a shipper with respect to what classification merchandise may come under for rate purposes has been authoritatively held to be a question which must be resolved by courts of law. (Pennsylvania R. Co. v. Fox & London, 93 F. 2d 669, certiorari denied 304 U. S. 566; Texas & Pacific Ry. Co. v. Sonken-Galamba Corporation, 100 F. 2d 158.) In Bernstein Bros. Pipe & Mach. Co. v. Denver & R. G. W. R. Co. (193 F. 2d 441, 444, 445) the court stated the apposite rule as follows: “If the question is which of two rates apply, and there is no contest about the reasonableness of either rate, and the tariffs contain no technical words or phrases employed in a peculiar meaning, the question is not primarily one for the Interstate Commerce Commission, but is a judicial question of which the courts have jurisdiction in the first instance.”

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Peck, P. J., Dobe, Cohn and Callahan, JJ., concur.

Judgment unaniihously reversed and a new trial ordered, with costs to the appellant to abide the event.  