Opinion
September 29, 1959
Orders appealed from unanimously reversed, on the law and the facts, with $20 costs and disbursements to defendant-appellant, and motions for summary judgment and severance of the third-party action denied, with $10 costs to defendant-appellant. The bill of lading, representing the contractual obligation of the carrier, is a document of title (Personal Property Law, § 218). Whether or not it was delivered to and accepted by defendant has no real bearing on plaintiff's right to payment, for it is beyond dispute that the entire shipment covered by the bill of lading was in fact turned over to the defendant. The right to receive payment for the goods forming the subject matter of the bill of lading does not arise from any of its provisions but either from an obligation implied by law to pay the reasonable value of the goods, or from an agreement, express or implied, to pay a stated price. Triable issues of fact exist as to what, if anything, was agreed upon, expressly or by implication, between defendant and plaintiff, or between defendant and the third-party defendant whose rights on the original invoice were assigned to plaintiff. Even if it could be said that the basis upon which Special Term granted summary judgment to plaintiff on the assignment of the invoice comes within the scope of the pleadings, there is an issue of fact as to whether the prior deposit paid by defendant to the third-party defendant was to be applied in full to payment for these goods. The third-party action by defendant against the third-party defendant is therefore intimately connected with plaintiff's claim, involves the same issues, and should not have been severed.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.