Philipp Bros. v. Bradley Express, Inc.

Appeal from an order of the Supreme Court at Special Term, entered March 28, 1971, in New York County, which denied a motion by defendant St. Paul Fire and Marine Insurance Company for summary judgment dismissing the amended complaint of the plaintiff and the amended third-party complaint of the third-party plaintiff. Per Curiam. We are unanimous in our opinion that plaintiff, shipper, does not, on this record, have a direct cause of action on the motor truck cargo policy of insurance issued by appellant to defendant-third-party-plaintiff, B. N. R. Agency Inc. Appellant’s policy insures only B. N. R.. and does not directly inure to the benefit of a shipper whose merchandise is lost. (Gone v. Niagara Pire Ins. Go., 60 N. Y. 619.) It was error for Special Term not to have granted the motion of appellant on this point. We agree with Special Term that issues of fact are raised as to whether the loss, which occurred in the terminal area, is covered under this policy and also whether Bradley is the responsible carrier rather than B. N. R. The order of the Supreme Court, entered March 28, 1971, denying defendant-third-party defendant-appeEant’s motion for summary judgment dismissing the third-party complaint and the fifth cause of action in the amended complaint, should be modified on the law to the extent of dismissing the fifth cause of action in the amended complaint [632] ...and otherwise affirmed, without costs.