
    Byron J. Strough and Lucien S. Strough, Appellants, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Railroad — it- must use reasonable diligence to furnish an adequate number of freight cars — increase of the freight rates pending a failure to furnish cars —payment of an increased freight rate with knowledge that ten days’ notice of the increasehad not been giren as required by the Interstate Commerce Law.
    
    It is incumbent upon a railroad coffipdny to exercise reasonable care and diligence to furnish.cars adequate for the transportation of freight tendered to it, but it is not obliged to discriminate in favor of a particular shipper, where the demands upon its transportation facilities exceed its capacity and the antici; pated or usual calls upon it.
    Where the neglect of a railroad company to furnish a shipper with sufficient cars for the transportation of freight which he desires to ship is not unreasonable, and, while the shipper is endeavoring to secure thé necessary cars, the railroad company makes a reasonable increase in its freight tariff for the particular class of freight in question, the shipper, who has paid such increased charge, cannot recover such increase from the railroad company.
    A shipper who voluntarily and without objection pays an increased freight rate upon the goods shipped by him, with knowledge that the -railroad company had not given the ten days’ notice of the change in the freight rates as required by the Interstate Commerce Act, is not entitled to recover from the railroad company the excess freight charge. -
    Appeal by the plaintiffs, Byron J. Strough and another, from a judgment -.of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 23d day of May, 1903, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order bearing date the 4th day of May, 1903, and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial made upon the minutes.
    
      Waylcmd F. Ford, for the appellants.
    ■ Henry Purcell, for the respondent.
   Spring, J.:

The plaintiffs were dealers in hay living at Lafargeville in the county of Jefferson. In the summer and fall of 1899 they purchased of the farmers living near the several local stations along the defendant’s line a large quantity of hay, designed to be shipped' to New York and Boston. The hay Was pressed by the plaintiffs and stored in barns near the defendant’s railroad, except such part as was shipped as it was drawn in by the farmers. Before purchasing the hay the plaintiffs made inquiries of the local station agents-of the defendant and also of its division freight- agent to ascertain if there was to be any increase in the tariff charge for the shipment of hay and were informed by each of said agents that there was to be no increase so far as such agent knew.

During the year 1899 and for sometime prior thereto, hay had been classified in what was known as the sixth class of merchandise. The charge on this class of freight from Jefferson county to New York and Boston -\vas seventeen cents per hundred.

From the" first of September to the first of January the plaintiffs shipped over defendant’s line quite a large quantity of this hay but were unable to procure sufficient cars to transport all they had on hand for shipment. They made demands daily of the various local agents for more cars but Were unable to procure them. One of the-causes of action contained in the plaintiffs’ complaint is that the defendant unreasonably neglected to provide a sufficient number of cars to forward this freight. That question was properly submitted to the jury (Root v. L. I. R. R. Co., 114 N. Y. 300) and their verdict determines that the defendant was not unreasonable in its failure to provide sufficient cars. The defendant’s general traffic manager testified that during the fall of 1899 there was an unusual and extraordinary call for freight cars and especially for the transportation of perishable goods, and apparently preference was given to-the shipment of goods of that character. The defendant was not apprised of any urgent necessity for the shipment of this hay. It was not within the class denominated perishable merchandise and its sale in midwinter might as readily be made as earlier in the-, season. It was not, therefore, called upon to put forth any unusual efforts to remove the hay. The ordinary duty of exercising reasonable care and diligence as a common carrier to furnish cars adequate for the transportation of freight was incumbent upon it, but not to-discriminate in favor of the plaintiffs Where the demands exceeded the capacity of the defendant and the anticipated or usual calls upon it. So, under the evidence, it was a fair question of fact whether there was any unreasonable neglect on the part of the defendant to» furnish the plaintiffs with the cars which they needed.

■ On. the first of January hay was placed in the fifth class of merchandise, involving an increase in the freight rate to Boston of eighty cents on. a ton .and to New York of sixty cents. The claim of the plaintiff is .that after this increase hr the tariff rate they shipped to Boston one. hundred and thirty-two carloads- of hay and to New York, eleven, carloads,, -each containing about ten tons. The plaintiffs paid the increased freight charge, amounting as, they . claim to $1,194.45,, and they seek to recover this excessive, rate. It is further- claimed that the price of hay. in these cities decreased one dollar a ton after the first of January, but the cause of action founded upon that, claim was abandoned on the trial.

The Interstate- Commerce Act (24 U. S. Stat. at Large, 381, § 6, as amd. by 25 id. 856) provides that,, before ■ any -advance 'is; made in freight charges,, a public notice thereof of ten days shall be given, .stating ,tlie- changes- to be made and- the date when the increased rate--is to go- -into -effect! The notice in- this'cáse-was. posted at the station of the -defendant at Lafargeville -on the twenty- ' fifth day of December, and the new tariff charge- became operative on January first following; The requisite ten days? notice was not,. - therefore,, given. The plaintiffs knew of this notice- when it was- first posted, and continued to ship their hay, paying the increased rate without a murmur until all had been shipped. - It does not. appear that, any part of the same was loaded in the first few days of January, so that .the plaintiffs, we may say, did have, the full ten days? notice before they delivered their hay to the- defendant.

Nor did they make, any complaint in any way of the increased charge- the- -defendant had imposed.. They paid the money voiun- . tarily and they cannot now recover it back. ( Vanderbeck v. City of Rochester, 122 N. Y. 285; Newburgh Savings Bank v. Town of Woodbury, 173 id. 55; Killmer v. N Y. C. & H. R. R. R. Co., 100 id. 395, 401; Bennett v. Bates, 94 id. 354, 373.)

We think, it was- no error for the court to decline to permit the jury to pass'upon the question as. to- whether this increased rate was unreasonable or not. There was no proof given on the- part of the -plaintiffs to sustain that charge,, and their voluntary assent to- it implies that the- rate- was reasonable. Again,, there was no implied .agreement whereby the plaintiffs were entitled to- ship the hay at the old rate. A discrimination of that kind excepting the plaintiffs. from the general freight tariff would be against public policy, and simply because a man has on hand a large quantity of merchandise which he intends to have transported by a common carrier does not relieve him from any reasonable, increase-in the-freight charge-which may be made while the goods- are in his custody for future transportation. The fact that they endeavored to obtain the cars to ship the goods before the increased rate became operative does not change this rule, as the jury have found that the defendant did not neglect improperly to perform its duty in furnishing cars.

The other cause of action is upon an assigned claim made by one Tallman, who was also a hay shipper living’ at lafargeville. The facts pertaining to that cause- of action are. also identical with plaintiffs’ own claim.

The judgment should be affirmed, with, costs*

All concurred.

Judgment and order affirmed, with costs. -  