
    R. K. L. Dresses, Inc., Respondent, v. Nationwide Packing & Shipping Service, Inc., Appellant, Impleaded with Perlstein & Co., Inc., Defendant.
    Supreme Court, Appellate Term, First Department,
    April 12, 1939.
    
      Solomon Cherniack, for the appellant.
    
      Nachamie & Benjamin, for the respondent.
   Per Curiam.

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 Franken-

THALER, JJ.  