Crittenden v. American Railway Express Co. — 238 N.Y. 578

Majority

p. 578

Henry L. Crittenden, as Assignee for the Benefit of Creditors of Anthony Puccia, Respondent, v. American Railway Express Company, Appellant.

Headnote

Carriers — damage arising from freezing ■ — ■ when delivery and acceptance by consignee a question of fact.

Crittenden v. American Ry. Express Co., 205 App. Div. 228 , affirmed.

(Argued April 16, 1924;

decided May 20, 1924.)

Appeal from an order of the Appellate Division of the Supreme Court.in the fourth judicial department, entered May 9, 1923, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the Monroe County Court at a Trial Term and granting a new trial. The action was to recover damages arising from the freezing of part of a carload of spinach. There was evidence that one of the doors to the car was defective and could not be closed and a jury might have found that the freezing was due to the opening. The trial court dismissed the complaint on the ground that a delivery and acceptance by the consignee before the freezing occurred were conclusively established. The Appellate Division held that on the evidence a question of fact was presented.

p. 579

Edward Lynn for appellant.

George Sanderson for respondent.

Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.