
    Henry L. Crittenden, as Assignee for the Benefit of Creditors of Anthony Puccia, Respondent, v. American Railway Express Company, Appellant.
    
      Carriers — damage arising from freezing ■ — ■ when delivery and acceptance by consignee a question of fact.
    
    
      Crittenden v. American Ry. Express Co., 205 App. Div. 228, affirmed.
    
      (Argued April 16, 1924;
    decided May 20, 1924.)
    Appeal from an order of the Appellate Division of the Supreme Court.in the fourth judicial department, entered May 9, 1923, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the Monroe County Court at a Trial Term and granting a new trial. The action was to recover damages arising from the freezing of part of a carload of spinach. There was evidence that one of the doors to the car was defective and could not be closed and a jury might have found that the freezing was due to the opening. The trial court dismissed the complaint on the ground that a delivery and acceptance by the consignee before the freezing occurred were conclusively established. The Appellate Division held that on the evidence a question of fact was presented.
    
      
      Edward Lynn for appellant.
    
      George Sanderson for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  