Opinion
April 12, 1939.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Third District.
Solomon Cherniack, for the appellant.
Nachamie Benjamin, for the respondent.
The pleadings and affidavits raise a triable issue as to whether the defendant is a bailee for hire or a common carrier. The order denying plaintiff's motion for summary judgment and setting the case down for trial for the sole purpose of assessing damages is inconsistent. The denial of a motion for summary judgment is based upon the existence of triable issues, and if triable issues exist the case cannot be set down for the sole purpose of assessing damages.
Order of October 24, 1938, modified by striking out the provision setting case down for trial for the sole purpose of ascertaining damages, and, as modified, affirmed, with ten dollars costs to appellant.
Appeal from order denying motion for resettlement and reargument dismissed.
All concur.
Present — McCOOK, HAMMER and FRANKENTHALER, JJ.