Misc.] Supreme Court, December, 1919. that such injuries are to be merely considered in estimating the difference in the value of the premises before the taking and of the remainder after the taking. Or it may be that the true rule of damages would be the difference in the value of plaintiff's premises before and after the taking, or the value of the land actually taken together with the cost of preventing the anticipated damage to the building, whichever amount should be the lesser, in accordance with the rule laid down in Riley v. Continuous Rail Joint Co., 110 App. Div. 787, 791; affd., 193 N. Y. 643, and Hartshorn v. Chaddock, 135 id. 116, 122. But, whichever be the true rule, plaintiff is at least entitled to have considered the evidence of its damage by reason of the loss of lateral support. That the plaintiff after learning of the laying out of the subway route through Montague street, and the letting of a contract for the construction of the subway therein, went ahead and incurred this additional expense before there was any actual trespass upon its property cannot, in my opinion, make any difference. as to its right to recover damages resulting from loss of lateral support. If the court shall find upon the evidence that the construction of the subway and its operation would with reasonable certainty have resulted in injury to plaintiff's building had the foundations been constructed according to the original plans, I think that the plaintiff is to be commended for its forehandedness in doing what seemed to be necessary to prevent the threatened damage, and should not be penalized on the theory that it did not wait until the damage had actually occurred, when, in all probability, the cost of repairing it would have been much greater than the cost of prevention has been. At the time when the additional expense was incurred the trespass was threatened, not by any mere private threat, but by such Supreme Court, December, 1919. [Vol. 109. public and official acts as the laying out of the subway route by the proper authorities and the letting of the contract for the construction of the tunnel and road, and subsequently and before the commencement of this action the threatened trespass was actually committed, and still continues. In Chicago, Santa Fe & California R. Co. v. McGrew, supra, the court said: "It is the duty of one, sustaining damages by reason of the act of another, to use all reasonable exertion to protect himself and avert, as far as practicable, the injurious consequences of such act. [Citing authorities.] It was, therefore, the defendant's duty to adjust his property to its changed condition as soon as it could reasonably be done, and in such manner as would avert such damages as could be avoided by reasonable endeavors and expense." 104 Mo. 291. The same doctrine seems to be recognized, although less explicitly, in Hartshorn v. Chaddock, supra. See Buell v. County of Worcester, supra. The fact that plaintiff did not determine to improve its property and did not begin such improvement until after the laying out of the subway route through Montague street does not preclude the consideration of the elements of damage above mentioned. Shepard v. Metropolitan El. R. Co., 48 App. Div. 452, 458; affd., 169 N. Y. 160; Storm v. New York El. R. R. Co., 82 Hun, 11, 13. It is urged that plaintiff owns only an undivided two-ninths of the fee of Montague street in front of its premises. The complaint does not so state, nor was any formal admission to that effect made on the record. The complaint alleges full ownership by the plaintiff of premises running from the center of Montague street to the center of Pierrepont street, and I must determine this motion upon the facts alleged. If it should appear on the trial that Misc.] Supreme Court, December, 1919. plaintiff owns only two-ninths of the fee of the street, this may have an important bearing on the amount of damages, if any, to be awarded. It will also raise the question whether or not the owner or owners of the other undivided seven-ninths should not be brought in as parties to this action, so that defendant on paying the damages, if any, which may be awarded in lieu of injunctive relief, may acquire a clear right to maintain and operate the subway through the land in the street in front of plaintiff's premises. These considerations lead to the conclusion that it cannot be determined without hearing the evidence that plaintiff will not be entitled to substantial damages by reason of defendant's trespass, and hence the trial must proceed. Motion to dismiss the complaint granted as to the first cause of action, with an exception to the plaintiff, and without prejudice to the proof of the facts therein alleged under the second cause of action. Motion to dismiss the complaint denied as to the second cause of action, with exception to defendant. No order need be entered hereon, but the disposition of the motion will be entered on the stenographer's minutes, with exceptions as aforesaid. The trial will proceed before me at a continuation of the December Special Term, Part III, to be held in the court room of the Trial Term, Part VI, in the Kings county court house on January 8, 1920. The stenographer's minutes of the former hearing should be obtained and submitted to me at the adjourned hearing. Ordered accordingly. Supreme Court, December, 1919. [Vol. 109. SAITTA & JONES, Plaintiffs, v. PENNSYLVANIA RAILROAD COMPANY, Defendant. (Supreme Court, Kings Trial Term, December, 1919.) Contracts riers when no action lies for breach of railroads car A special contract for furnishing freight cars for interstate shipment cannot be enforced against a railroad when its tariffs have not been filed with the Interstate Commerce Commission. MOTION by defendant to set aside the verdict of the jury, and for a new trial. Burlingham, Veeder, Masten & Fearey, for motion. Ernest P. Seelman, opposed. BROWN, J. On or about December 15, 1916, the defendant entered into an agreement with the plaintiffs for a good and sufficient consideration that it would furnish at Pier B, Jersey City, not later than Saturday morning, December 16, 1916, six freight cars for plaintiffs' use in shipping grapes over defendant's railroad to Iowa and other states. For the breach of this contract the plaintiffs have had a verdict for their damages. At the close of the evidence the defendant moved to dismiss the complaint, and for judgment against the plaintiffs upon the ground that the contract above stated was illegal and void, it being prohibited by the Interstate Commerce Act. The motion was temporarily denied with a view of taking the verdict and passing upon the question upon a motion to set the same aside. The opportunity afforded for a more careful examination of the question than was presented at the trial leads to the conclusion that the motion to dismiss the complaint and for judgment in defendant's favor ought to have been granted. Misc.] Supreme Court, December, 1919. The plain reading of sections 1(b), 3, 6(a) and 6(g) of the Interstate Commerce Act (4 Fed. Stat. An.) prohibits a common carrier from making any special contract relative to its cars as facilities of interstate shipment that is not specified in tariffs filed with the commission. The defendant had not filed any tariff with the commission that provided for the contract made herein. The following authorities condemn the contract under consideration, and it cannot be the basis of a claim for damages: Chicago & Alton R. R. Co. v. Kirby, 225 U. S. 155; American Smelting & R. Co. v. Union Pac. R. Co., 256 Fed. Repr. 737; Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190; J. H. Hamlen & Sons Co. v. Illinois Cent. Ry., 212 Fed. Repr. 324; Chicago, R. I. & Pac. R. Co. v. Hardwick Elevator Co., 226 U. S. 426; Southern Ry. Co. v. Reid, 222 id. 424; Morrisdale Coal Co. v. Penna. R. Co., 230 id. 304; Southern Ry. Co. v. Prescott, 240 id. 632. Motion granted. CLINTON R. JAMES, MARY E. JAMES and JOHN F. JAMES, as Executors and Executrix of the Last Will and Testament of JOHN F. JAMES, Deceased, Plaintiffs, v. PEPPARD REALTY Co., INC., ROBERT R. DANZILLO, MORRIS GOLD and DANN REALTY CORPORATION, Defendants. (Supreme Court, Kings Special Term for Motions, Decembe 1919.) Where the owner of the equity of redemption was not made a party to an action to foreclose a first mortgage, the judgment of foreclosure and sale is without jurisdiction as to it and the |