
    James C. Davis, Director-General of Railroads, as Agent of the Erie Railroad Company, Appellant, v. James A. P. Ramsdell et al., as Copartners under the Firm Name of The King Coal Company, Respondent.
    
      Carriers — railroads — demurrage — allowance for bunched deliveries and frozen shipments.
    
    
      Davis v. Ramsdell, 201 App. Div. 855, affirmed.
    (Argued October 19, 1922;
    decided November 21, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 11, 1922, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought to recover demurrage on cars of coal consigned to the defendants at Newburgh, N. Y., and the amount of demurrage claimed was $5,345. Upon the trial the defendants relied upon two affirmative defenses, viz.: That the defendants were entitled to free time- for unloading beyond that allowed in the complaint, because the cars had been “ bunched ” and delivered in accumulated numbers; and that the ladings in many cases had been frozen, and that the defendants, on such cars, were entitled to the additional time necessary in unloading the frozen shipments, for which no allowance had been made by the plaintiff. The trial court found that the defendants were entitled to an allowance of $2,442 on the amount sued for, because of the bunching of the cars in delivery. The plaintiff made no complaint of that allowance and did not appeal from that portion of the decision. The trial court also found that the defendants were entitled to an allowance of $2,208 on the amount sued for,, because certain of the shipments had been frozen in transit. From this latter allowance the plaintiff appealed.
    
      Elbert N. Oakes for appellant.
    
      Graham Witschief for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, McLaughlin, Crane and Andrews, JJ. Dissenting: Cardozo and Pound, JJ.  