Morse Electro Products Corp. v. Blue Ribbon Express, Inc. 43 A.D.2d 920

Order, Supreme Court, New York County, entered May 21, 1973, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion, unanimously modified, on the law, to deny plaintiff’s motion for summary judgment, and otherwise affirmed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. Plaintiff sues to recover alleged overcharges by defendant, an interstate motor freight carrier. If the case is properly within the jurisdiction of the court, the conflicting informal letter opinions of the Interstate Commerce Commission and the National Classification Board of the Motor Carrier Industry, relied upon by the plaintiff and defendant respectively, suggest the presence of issues requiring trial. (Sill-man v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404.) In its reply brief to this court, and apparently for the first time, appellant asserts that the Interstate Commerce Commission has exclusive primary jurisdiction of this dispute and asks that the action be stayed pending a formal hearing before the Interstate Commerce Commission. Plaintiff has had no opportunity to reply to this contention and we shall not undertake to pass on its merit of timeliness (but, see, United States v. Western Pacific R. R. Co., 352 U. S. 59; TJ. S. Code, tit. 49, § 16, subd. [3]). Either party may apply to Special Term for such relief as it deems proper in the premises. Concur — Markewich, J. P., Nunez, Kupferman, Murphy and Macken, JJ.