On the record before us, I am not satisfied that Erie alone is culpable. In reaching such determination I am cognizant of the fact that, for the purposes of this appeal, Erie is not aggrieved by the exoneration of Westinghouse (CPLR 5511; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5511.08). Indeed, on July 1, 1971, upon application of Westinghouse, we dismissed Erie’s appeal from the judgment and from so much of the order as favored Westinghouse. I also recognize that plaintiff does not seriously press its appeal against. Westinghouse, understandably content with a finding against one presumably solvent defendant; although it is noted that restoration to the status quo ante is requested if we reverse the finding against Erie on liability.
Briefly stated, plaintiff is suing for damages to a large transformer it purchased from Westinghouse, which was transported by Erie. Not certain which party was responsible for such damages, it sued both.
While it appears uncontested that when the transformer reached its destination at Lincoln Park, New Jersey, it had visibly shifted its position in the railroad car and that an impact register applied thereto recorded that the transformer had received a severe jolt; it also appears undisputed that Westinghouse (after manufacturing and allegedly inspecting and testing it), loaded and secured the transformer on the railroad car and that the reliability of the impact register (which had run out prior to destination) was never established. It further appears that an on-site inspection at the destination point disclosed no visible external or internal damage. Interestingly, and perhaps significantly, when the oil was drained for internal *288inspection, a left-over Westinghouse wrench was found inside the transformer.
Thereafter, plaintiff transported the transformer to its site where difficulties were encountered when it sought to energize the unit; and it was returned to Westinghouse for disassembly and rebuilding. Subsequent inspection disclosed that the apparent difficulty arose in the no-load tap changer. But there is nothing in the record to show any particular defect in the no-load tap changer resulting from impact, acceleration or deceleration forces. Moreover, it is entirely conceivable that plaintiff, itself, may have caused extensive damage when it energized the transformer.
In short, I find nothing in the record to conclusively support a finding of a transit-caused physical defect. On the contrary, there appears to be sufficient doubt as to the factual issues to deny the drastic remedy of summary judgment. (Glick & Dolleck v. Tri-Pac Export Corp., 22 N Y 2d 439.)
Accordingly, I would reverse the judgment appealed from, modify the order appealed from by deleting decretal paragraphs “ (1) ”, “ (5) ” and “ (6) ”, and remand the entire matter to a trial court for determination.
Stevens, P. J., and McGivern, J., concur with Capozzoli, J.; Murphy, J., dissents in part in an opinion, in which Kupferman, J., concurs.
Order and judgment, Supreme Court, New York County, entered on March 8, 1971 and April 13, 1971, respectively, affirmed. Respondent Westinghouse shall recover of appellant Erie $50 costs and disbursements of the appeals.