Tsimenis v. New York Central Railroad Company

Full title: MAE TSIMENIS et al., Respondents, v. NEW YORK CENTRAL RAILROAD COMPANY et…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 11, 1962

18 A.D.2d 631 (N.Y. App. Div. 1962)

234 N.Y.S.2d 757

Opinion

December 11, 1962

Order, entered April 30, 1962, denying defendants' motion to dismiss the complaint, unanimously affirmed, with $20 costs and disbursements to plaintiffs-respondents. We are of the opinion that the doctrine of primary jurisdiction is applicable. ( United States v. Western Pacific R.R. Co., 352 U.S. 59.) On a proper showing that identical issues within its competence are pending before the Interstate Commerce Commission, a stay of the prosecution of this action pending that agency's determination may be indicated. (Cf. Thompson v. Texas Mexican Ry. Co., 328 U.S. 134.)

Concur — Botein, P.J., Breitel, Valente, McNally and Stevens, JJ.