Bianchi v. Sears, Roebuck & Co. , 134 N.Y.S.2d 495 ( 1954 )

Wheeler, J.

(dissenting). My dissent is based upon the reasoning expressed by the trial court in his memorandum decision (203 Mise. 893). This so-called “ bay room ” is but a small portion of defendant’s warehouse, and, being contiguous to the open loading platform, is for all practical purposes a continuation of the loading platform. At least, this is the interpretation adopted over the years, not only by this plaintiff but by numerous other carriers using the same facilities.

We should construe the phrase “ the interior of a building ” in context with the remaining words “ basement or above the ground floor * * * or at a point inaccessible to motor vehicle ”. Adoption of the narrow meaning of “ interior ” would result in the extra charge every time a truckman- stepped through the door of a building or into an entrance hall, even though it was for a very few feet. As I view it, such a result was never contemplated either by the tariff schedule or by the truckers, including the plaintiff, who picked up freight from this warehouse.

I vote to affirm the judgment.

All concur, except Wheeler, J., who dissents and votes for affirmance, in opinion. Present — Vaughan, J. P., Ktmbalt,, Piper and Wheeler, JJ.

Order insofar as appealed from reversed on the law and facts, with $10 costs and disbursements, and matter remitted to the Special Term for further proceedings in accordance with the opinion. [See 285 App. Div. 864.]