Bianchi v. Sears, Roebuck & Co. , 284 A.D. 709 ( 1954 )

Per Curiam.

This is a common carrier’s action to recover from the shipper the amount of an alleged undercharge. Under the applicable tariff, the basic rate is charged for shipments picked up at the “ doorway, platform or entrance to shipping or receiving room of consignor or consignee when directly accessible to carrier’s motor vehicle at the street level ”. An additional charge is provided for “ "When carrier upon request, is obliged to perform pick-up or delivery service to or from the interior of a building ’ ’. The question is whether plaintiff performed pickup service from the “ interior ” of a building.

Plaintiff’s job was to pick up goods at defendant’s pool warehouse for carriage to various Sears stores. The warehouse is divided into three rooms: A large stock room in which the goods are generally commingled; a smaller shipping room (referred to in the testimony as the “ bay room”) in which shipments destined for particular stores are segregated; and a shipping and receiving office contained in the bay room. Outside of the building and running the length of the bay room is a loading platform. The north wall of the building (and of the bay room) is a twelve-inch brick wall in which there are seven doorways leading to the platform. When these- entrances are not in use during winter, the overhead metal doors are closed. The stock room and bay room are separated by a six-inch tile wall in which there are four wooden doors. These rooms are heated and illuminated alike. When the plaintiff came to load his truck, he backed up to the loading platform at the third or fourth door. Since a load included shipments to several stores, the merchandise would be found in several places in the bay room and had to be carried on hand trucks through the third or fourth door, across the platform, and into the motor truck.

We think that when, upon request, plaintiff went into the bay room, he was performing pickup service from the interior of a building. The north wall of the bay room, a twelve-inch brick wall, is the north wall of the building. The bay room is heated and illuminated and contains offices. Structurally and by use, it is an integral part of the building. Defendant could have availed itself of the lower rate by placing the goods on the platform or in the doorway or entrance, all of which are directly accessible to the trucks at the street level. What the actual practice between the parties has been is immaterial. The rate listed in the filed tariff is the only legal rate and must be collected. (Public Service Law, § 63-t, subd. 2; New York Central & Hudson Riv. R. R. Co. v. General Elec. Co., 219 N. Y. 227; Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155.)

On the pleadings it is unnecessary to consider whether plaintiff could recover as to goods carried by him during periods when his certificate of public convenience and necessity was suspended. (Civ. Prac. Act, § 242; Brearton v. De Witt, 252 N. Y. 495.) The order appealed from should be reversed and the matter remitted to Special Term to determine the amount of plaintiff’s damages.