Hudson Handkerchief Manufacturing Corp. v. Porto Rican Express Co.

Dore, J.

(concurring in result). Whether defendant controlled the shipment and whether it was made pursuant to what is called a common arrangement ” should not be passed upon before full development of all the facts at a trial including proof of whether the arrangement with the ocean carrier herein is the usual and customary arrangement by agreement between the defendant and the ocean carrier. Until all the facts are fully *515developed, issues relating to application of the Interstate Commerce Act should not, I think, he ruled on in advance. The pertinence of various parts of the act and the rules of law applicable thereunder will depend on the precise state of facts established after a plenary trial.

Accordingly, I agree that summary judgment should not be granted, but for the reasons stated I concur only in the result reversing the order and denying the motion.

Glennon, J. P., Cohn and Callahan, JJ., concur with Shientag, J.; Dore, J., concurs in result in opinion

Determination of the Appellate Term and the order of the City Court reversed, with costs to the appellant in all courts and the motion denied. [See post, p. 1055.]