Sid Birzon, Inc. v. Pinkerton's Inc.

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term properly denied plaintiff’s motion for summary judgment on the issue of liability. The court erred, however, in determining, as a matter of law, “that the storage of plaintiff’s merchandise with defendant at the time of plaintiff’s loss, constitutes a bailment for the mutual benefit of both parties and not a gratuitous bailment.” The record reveals unresolved questions which preclude a summary determination of the bailment issue. (Appeal from order of Supreme Court, Erie County, Doyle, J. — summary judgment.) Present — Dillon, P. J., Simons, Doerr, Moule and Schnepp, JJ.