
    Spencer Kellogg & Sons, Inc., Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Chain elevators — railroads — services — action to recover for services in elevation and storage of grain — defense of failure to com/ply with tariff.
    
    
      Kellogg & Sons, Inc., v. Del., L. & W. R. R. Co., 204 App. Div. 243, affirmed.
    (Argued June 13, 1923;
    decided July 13, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 22, 1923, affirming a judgment in favor of plaintiff entered upon a verdict directed by the trial court. This action was brought to recover $1,535.59 which the plaintiff asserted was due it for services performed for the benefit of the defendant in the elevation and storage of a certain quantity of grain between the 21st day of September and the 5th day of October, 1921. The defendant claimed it was not lawful or proper to pay this sum to the plaintiff by reason of the plaintiff’s failure to comply with the tariff under which the grain moved.
    
      M. C. Spratt and Louis L. Babcock for appellant.
    
      W. C. Carroll for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, .Cardozo, Pound, Crane and Andrews, JJ. Not sitting: McLaughlin, J.  