
    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.
    
      
      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.

Jasen, J. (dissenting).

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