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NORTON v. N.B. FAIRCLOUGH

UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY


March 13, 1945

NORTON
v.
N. B. FAIRCLOUGH, Inc.

The opinion of the court was delivered by: SMITH

This is a civil action for the recovery of demurrage charges assessed against the defendant under Freight Traiff No. 4W -- I.C.C. 3722, and Freight Tariff No. 4X -- I.C.C. 3815, pursuant to an 'average demurrage agreement.' The action is before the Court at this time on a motion for summary judgment filed by the plaintiff pursuant to rule 56, Rules of Civil Procedure, 28 U.S.C.A.following section 723c, and is submitted on the pleadings, affidavits, and documentary evidence.

There are no genuine issues as to any of the material facts, and the plaintiff is entitled to judgment as a matter of law. The proof offered by the plaintiff is conclusive, and the defendant's mere denial of liability, unsupported by any allegations of fact, raises no genuine issue of fact

 It is alleged by the defendant in its answering affidavit that the 'demurrage claims of the plaintiff were caused by the bunching of cars by the plaintiff.' This averment is insufficient to defeat the plaintiff's right to judgment. There is no proof by affidavit or otherwise, that a claim for bunching was 'presented in writing to (the) railroad's agent within thirty days, * * * , after the date on which bill for demurrage (was) rendered,' as required by Rule 8, Section B(2) of the Tariffs. *fn1" The proof offered by the plaintiff is, in fact, to the contrary. It is the opinion of the Court that this defense is sham and was interposed only for the purpose of delay

 The motion for summary judgment is granted, and an order for judgment shall be entered forthwith.


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