Tsimenis v. New York Central Railroad

Order, entered April 30, 1962, denying defendants’ motion to dismiss the complaint, unanimously affirmed, with $20 costs and disbursements to plaintiffs-respondents. We are of the opinion that the doctrine of primary jurisdiction is applicable. (United States v. Western Pacific R. R. Co., 352 U. S. 59 .) On a proper showing that identical issues within its competence are pending before the Interstate Commerce Commission, a stay of the prosecution of this action pending that agency’s determination may be indicated. (Cf. Thompson v. Texas Mexican Ry. Co., 328 U. S. 134 .) Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.