NEW YORK &: N. RY. CO. ". NEW YORK &: N. E. R. CO.

86,\}·

ind for the receiving, forwarding, and delivering of property to and' from the line of said petitioner and the line of the respondent. In port of such charge it averred, not only a discrimination in rates, and thei withdrawal of a joint through tariff which had been theretofore in force: and operative between tBe parties, but also that respondent had threatened to close the through route via petitioner's line altogether, and had' refused to accept freight at all on through bills, thus compelling the' shippers to attend at Brewsters,-the point of connection,-to transfer and rebill their goods. This was plainly a charge, not only of a discrim-: ination in rates, but of a failure to discharge the affirmative duty to interchanp;e and forward traffic with the equal facilities, required by the first subdivision of the second clause of the third section, above quoted. The' petition prayed for an order directing the respondent to grant equal facilities for the interchange of traffic, and for the receiving, forwarding,' and delivering of property to and from the line of petitioner and that of respondent, as were here afforded to the Housatonic Railroad. The commission found that there had been a refusal to afford facilities for the interchange of interstate traffic, and the receiving, and delivering of the same, reasonable, proper, and equal to the facilities forded to the other connecting road; that the respondent was "guilty of the discrimination charged in the complaint, in its rates and charges for the interchange of interstate traffic, and in the arrangements it makes for through lines for the freight traffic." And the order or requirement of the commission commanded the respondent to desist from ing against petitioner (1) by refusing to make such arrangements with, or afford such facilities to, the petitioner for the interchange, at the point of connection, of interstate traffic, and for the receiving, forwarding; and delivering of such traffic, as are reasonable and proper and equal toarrangements made or facilities afforded by it for interchange between respondent's line and the other connecting road; and also (2) from discriminating in respect to rates and charges, etc. The decision ofthe commission manifestly disposed of both subjects of complaint, and it seems' quite plain from the record that both subjects were before them. Since the service of the order the respondent has restored the joint' through tariff. It has also desisted from refusing to accept freight on through bills, but has so arranged the running of its trains that the facil.. ities for interchange, forwarding, and delivering are is alleged) substantially no better than before, and not equal to those afforded to the competing line. The respondent contends, however, that such acts may not be shown before this court, acting summarily under section 16 in review and enforcement of the order of the commission, because no question of the hours of running trains was presented to the commission. It is manifest that equal facilities may be refused quite as much in one way as in the other, and both grounds of complaint relate to the subjectmatter of physical interchange and prosecution of traffic, instead of to a discrimination in rates. To refuse altogether to receive traffic from one '.lonnecting line; to receive it only under arrangements which impose such obligations upon the shippers as to transfer and rebilling as would

,Z

REPORTER.

vol. 50.

;o£AAebu!,!iness a., more fqonm Une; toreoe.ive itwithoutresll.,ipment bUll to ,forward to and forward it, to, hoUl's, or manner of its delivery as to deprive it of th,OS6 to traffic coming'from the competitor,thes.e I:\nd ra grent Vl\rietyofother devices which be suggested, while differing lilom8}Vhat iq. (ietail, are in substance,practically the same. Any one ,of them. if satisfactorily proved, may justify the conclusion that a. carrier, subjElct to the provisions of the act is deliberately alt proper. and equal facilities for the interchange'ofi traffic" with a connecting line, which the statute makes it his afflrlpative duty to, alford. 'And there seems no good reason for holding that tbeorder commission should not be as broad as the conclusion ,direoting the, carrier to "cease, desist, and thenceforth abstain "frorp ,refusingto,atrord such when snoh refusal was the offense Qharged and proved. To require petitioner to begin a new proceedjngeach time the :ingenuity of the offending carrier may devise 80mes\igMvarilttionof the methods by means of which such refusal is persisted would be to fritter away the system of procedure provided in tb,e'l;ltatute to seoureobedience to its requirements. It must be held, upon thism9tiO,n, assuming the facts to be as stated, that the py the commission was no broader than the petition and order pr()()fsoelore them warranted; and that this court may properly investigate the charge that respondent is disobeying the requirements of such omissions in substance the same as those considered order by by the commission, directed to the same end, and accomplishing · precisely. the same result. The consideration of the next objection, viz., that the point where the respondent exchanges ·trllffic with the petitioner is 16 miles from the point where it exchanges traffia with the road. and that it cannot be required to furnish equal facilities to all roads at dift'erent places,may be postponed till the proofs are closed. No doubt; as respondent,contends, the question of the existence of discrimination and of an actionable refusal of equal facilities is to be ascertained by applying all the of equity affecting the case, and should be found t() such fucilities can be afforded "under substantially similar circumstances and oonditions;" but there is nothing in the act whioh makes mere distance between conneoting points, whether a furlong, a mile, or ten, or twenty, controlling of that question. There is no suggestion here of affording new facilities at a new connecting point. S() Jar,astbe record sh()ws, the affording of equal facilities to both connecting,r.Ql1ds at their several points of connection has been at all times entirely practicable, easy, and convenient, and the existing equality was destroyed,by the defelldant solely to divert the business of petitioner to a more favored road.. In the face of the finding of the commissiun that "the physical condition for interchanging of traffic with both the connectsuitable, adequate,. and, au bstantially equal,"-a finding ing lines, which the fO,l'm of this motion leaves unchallenged,-the requirements

NEW YORK &

co.e.

NBWYOBK& N. B. R. CO.

871

01 the second clause of the third section seem to be plainly Until thisfind1ng of fact is. questioned, and the record upon which the case made in this court is to be finally determined is completed, further discussion of this point would be a waste of time. It is further contended that there is no q1l6stion here of equal facilities to two connecting lines; that what the petitioner is really asking is that the New England Company shall extend to petitioner's line the same facilities which it extends to its own line. The facts do not seem to warrant such a contention.· The Housatonic Company is a separate corporation, independent from the New England Company. The latter, so far as appears, does not own even a share of the former's stock. It neither built, nor bought, nor leased it. It neither conducts its business, nor takes the earnings therefrotn. The only link between them is such community .of interest as springs from the existence of the contract for the intercqange of traffic, which it is claimed secures the former road unequal facilities. lOt be that such a contract makes each line 8 mere continuation or extension of the other, it is hard to conceive how a case of refusing equal facilities could ever be made out. The very granting of superior facilities to one line would make it a part of the one that favored It, and no longer a connecting when compared with its unsllccessful rival. Nor am I able to see that the mere ownership of half the stock of the terminal company, which connects the terminus of the Housatonic road with New York, alters the situation in any way, when the immediate question is as to the respective facilities accorded to the Housatonic Railroad and to the petitioner. Respondent cites the first section of the act, providing that it shall" apply to .any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used, under a common control, management, or arrangement for a continuous carriage or shipment from one state," etc., "to any other state," etc. That the respondent (considered by itself) is so engaged is not disputed. It runs through or into the states of Massachusetts, R.hode Island, Connecticut, New York. It is no doubt true that the arrangements between respondent, the Housatonic road, and the terminal company are such that they form a combina,tion of carriers, :within .the meaning and .effect of section.!, so as to make them a legal unit within the provisions of the act, and, as such, jointly responsible for affordiag equal facilities in proper cases to competing lines connecting with such combined continuous line. But, besides the duty which any one of these corporations lUay owe, jointly with the others, it is not relieved from its obligations under the act to all roads which connect directly with itself. The New England Railroad might, perhaps, by reason of Its combination with the other two, be charged with some duty lines connecting physically with the Housatonic Railroad, but such combination cannot excuse it from fulfilling its own obligations to roads which connect physically with itself, unless its union with the other combined lines is of such a chara,cter that their lines have become its own; and such a state of affairs does not seem to exist here. The

872

': "

FEDERAL REPORTER,

vol. 50.

motion to dismiss the petition is therefore denied. Counsel may arrange for atrial otthe issues immediately upon the adjournment of the present jur,r session.

TREADWELL tJ. LENNIG.

(CirCuit Oourt, E. D. Penn8l/ltoomia. Aprll
1.BQUITy-EVIDENCE-ANSWER UNDER OATH.

2/),

1892.)

. Matter contained in an answer made under oath. when an oath thereto Is waived in the bill, is not evidence for the respondent after replication and proofs, even when the respondent has died since the answer flied.
A

2.

BAME-BoOK OJ!' ACCOUNTS.

made evidence because the complainant called for it, and asked, when it was pro·

book of accounts, referred to in the answer. but not offered in eVidence, is not

.

du,Qed. 1I0me questions about it whioh brought out its oontents.

8.WITNBIilS-COMPETlINOY-l'MNSACTIONS WITIl DECEDENTS-Clloss·ELUlINA.TION.

half. ill a suit against the representatives of a decedent, as to matters independent . Of t/le matters inquire!l about in direot examination, are oompetent as against re-

,.

Evidenoe elicited by oross-examination of oomplainant testifying on his own be-

sPDl).dellt, and would not be affeoted by an objection to the competency of the witness.

In Equity. Bill for an account against Nicholas Lennig and John B. Lennig,cxecutors of Charles Lennig, deceased. Demming & Logan and Oharles M. Demond, for appellant, cited, as to whether the book of accounts was made evidence by being called for by the respondent: Oarradine v. Hotchkiss, 120 N. Y. 608, 24 N. E. Rep. 1020; .smith v. Railwa,y Co., (Sup.) 16N. Y. Supp. 417; Carr v. Gale, 3Woodb. & M. 59; Austin v. Thompson, 45 N. H.1l3: Witheril v. Gillespy, 7 Sergo & R. 10. Charles Hart and Angelo T. Freedley, for respondent.
BUTLER, District Judge. The bill is for an account based on the following facts: On May 12, 1884, the complainant borrowed of Charles Lennig, now deceased, $3,000, on his promissory note, and a transfer, collatE-ral l of 6,OOOshares of the United Verd Copper Mining Company. The note was payable in six months from date, and contained the following. provision:

"The holder of this note may sell the shares of stock at public or private sale at any time or times hereafter, without reference or notice to me, and with the right on the part of tIJe holder of this obligation to become the purchaser at such sale or sales of the whole or any part of said collaterals, freed and discharged of any eqUity of redemption, and to transfer. assign, and deHver up the same. ,.

When the note matured another was given in renewal for an additional period of six months. This last note matured June 2, 1885, and
. 1

Reported by Mark Wilks Collet. Esq., of the Philadelphia bar.