Brothers v. Bradley Express, Inc. — 34 N.Y.2d 730

Majority

p. 730

Philipp Brothers, Respondent, v. Bradley Express, Inc. et al., Respondents, and St. Paul Fire and Marine Insurance Company, Appellant. B. N. R. Agency, Inc., Third-Party Plaintiff-Respondent, v. St. Paul Fire and Marine Insurance Company, Third-Party Defendant-Appellant.

Submitted February 19, 1974;

decided May 8, 1974.

p. 732

Simon Greenhill and Jerome G. Greenspan for appellant.

Joseph Kasoy for B. N. R. Agency, Inc., respondent.

John L. Conners and Francis A. Montbach for plaintiff-respondent.

Memorandum. The order of the Appellate Division should be affirmed, with costs.

The critical issue on this appeal, whether B. N. R. Agency, Inc. was acting as carrier, raises a question of fact which can not be resolved on a motion for summary judgment. That B. N. R. Agency, Inc. acted as “ carrier ” for Bradley Express, Inc. in carrying goods for the plaintiff and was not itself a licensed interstate carrier, makes it no less a carrier.

I would hold that B. N. R. Agency, Inc. was not acting as a “ carrier ” of plaintiff’s property at

Dissent

p. 733

the time of the loss and, hence, that the loss was not covered under its policy of insurance with the defendant. Accordingly, I would modify the order of the Appellate Division and grant summary judgment on the third-party complaint for the moving defendant on the dissenting opinion of Mr. Justice Steueb.

Chief Judge Breitel and Judges Gabrielli, Jones and Rabin concur; Judge Jasen dissents and votes to modify in a separate opinion in which Judge Wachtler concurs; Judge Stevens taking no part.

Order affirmed, with costs, in a memorandum. Question certified answered in the affirmative.