Per Curiam.
The orders of the Interstate Commerce Commission in Emergency Freight Charges ( 1935, Ex Parte No. 115) (208 I.C.C. 4), and the subsequent proceeding in the same case (215 I.C.C. 439) and the emergency transit rates published as Items Nos. 70 and 75 of the emergency tariffs override the order of the Interstate Commerce Commission in Beacon Milling Company v. New York Central R.R. Co. (157 I.C.C. 635), so far as necessary to permit the emergency rates and charges to be applied to the transportation and service here in question. Accordingly, the defendant, if aggrieved by these rates, must find its remedy, if any, in proceedings before the Interstate Commerce Commission. ( Louis. Nash. R.R. v. Maxwell, 237 U.S. 94, 97; Pennsylvania R.R. Co. v. Titus, 216 N.Y. 17, 22.)
No appeal having been taken from the denial of the plaintiff's motion, we are without power to direct summary judgment in its favor.
The judgments should be reversed and the defendant's motion for summary judgment denied, with costs in all courts, without prejudice to any proceedings which the defendant may hereafter institute before the Interstate Commerce Commission.
LEHMAN, Ch., J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.
Judgment accordingly.