The trial court had jurisdiction to determine the issue in this case as to whether the merchandise shipped should have been paid for at the tariff rate for “ rags ” or, as the carrier claimed, at the higher rate for “ clothing.” In the circumstances, plaintiff’s complaint should not have been dismissed for lack of jurisdiction.
A controversy between a carrier and a shipper with respect to what classification merchandise may come under for rate purposes has been authoritatively held to be a question which *611must be resolved by courts of law. (Pennsylvania R. Co. v. Fox & London, 93 F. 2d 669, certiorari denied 304 U. S. 566; Texas & Pacific Ry. Co. v. Sonken-Galamba Corporation, 100 F. 2d 158.) In Bernstein Bros. Pipe & Mach. Co. v. Denver & R. G. W. R. Co. (193 F. 2d 441, 444, 445) the court stated the apposite rule as follows: “If the question is which of two rates apply, and there is no contest about the reasonableness of either rate, and the tariffs contain no technical words or phrases employed in a peculiar meaning, the question is not primarily one for the Interstate Commerce Commission, but is a judicial question of which the courts have jurisdiction in the first instance.”
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Peck, P. J., Dobe, Cohn and Callahan, JJ., concur.
Judgment unaniihously reversed and a new trial ordered, with costs to the appellant to abide the event.