Opinion
June 28, 1949.
Appeal from Supreme Court, Albany County.
Present — Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ.
The action is brought to recover a balance alleged to be due under a contract for the hauling of milk. The complaint alleges that the plaintiff as a common carrier was required by the Public Service Commission to file a tariff fixing the price to be charged for transporting milk in tank trucks, and that such tariff fixed the price regardless of the provisions of any contract between the parties. The action is to recover the excess by which the tariff rate is greater than the previous rate in effect between the parties. The motion for summary judgment is based on the contention that the vehicles transporting milk are specifically exempted from the provisions of the Public Service Law (§ 63-i), and further, that the plaintiff being engaged in interstate commerce, Federal regulations superseded all State regulations. The complaint, however, contains another allegation to the effect that the hauling was done at the special instance and request of the defendant, and at and for the respective rates, tolls and charges as set forth in a schedule annexed to the complaint, which were the rates specified in the tariff filed with the commission. The affidavits submitted on the motion tend to support the allegations that there was an agreement between the parties based on the tariff rates. Taken together, the allegations and the affidavits indicate that there are issues of fact presented that should be tried and not decided summarily on motion. Whenever it fairly appears, upon the merits, that there is a question of fact involved, summary judgment should be denied even though the issues may be imperfectly presented by the pleadings. ( Curry v. Mackenzie, 239 N.Y. 267). Order unanimously affirmed, with $10 costs.