4

Statement of case.

insured had not been advised that such risks were not taken by defendant, and the insured had no other open policy or book. Held, that the evidence justified a finding that the risk was accepted by defendant. It appeared that during the season when this risk was taken, which was upon a cargo of cement, P. had been engaged in forwarding cargoes of cement to various points in the upper part of the harbor of New York, on the Harlem river and at Tarrytown. All of these cargoes had been insured through O. & Co. under the policy in question. In such cases the places of destination were not entered, but under columns in the book headed "from" and "to," the shipments were indicated by the words "from New York to harbor." Opposite the name of the boat in question in the column "from" was written, "from New York harbor," the last word extending into the column headed "to." Held, that, under the circumstances, the contract was not so indefinite and uncertain as to render it void.

The cargo in question was shipped to Tarrytown. Evidence on behalf of
plaintiff was offered and received to the effect that the term "harbor of
New York," as used in the business of insurance, included Tarrytown
and other points in the New York custom-house district. Held, that the
evidence was competent.

The canal boat arrived safely at Tarrytown and was moored alongside a
dock; when the tide went out it grounded and was so injured that
it sank and the cargo was destroyed. It appeared that the boat was
seaworthy when laden. The perils insured against were
of the seas,
canals, rivers," etc. Held, that the loss was within the perils insured
against.

Berwind v. G. Ins. Co. (114 N. Y. 231), distinguished.

(Argued February 5, 1892; decided March 8, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 18, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.

This was an action to recover for the loss of a cargo of cement underwritten by defendant.

April 26, 1886, the defendant issued to Sherman Petrie an open uniform canal cargo policy, by which it undertook to "insure the several persons whose names are hereafter indorsed hereon as owner, advancer or common carrier on goods * * * on his own boat, or boats belonging to others, loaded on commission or chartered. From place to place, as indorsed

Statement of case.

hereon, or in a book kept for that purpose, at the rate and on the goods * * * as specified in the said indorsement." The policy contained these clauses: "No risk considered as insured under this policy until said indorsement is approved and signed by this company, or its duly authorized agents, at New York, unless with special agreement with the company and indorsed hereon.

66

* *

Beginning the adventure upon the goods * from and immediately following the lading thereof, at the port or place, indorsed as aforesaid, and continue the same until the said goods * shall be safely landed at the port of destination as aforesaid.

*

*

*

* *

"Touching the adventures and perils which the said insurance company is contented to bear and take upon itself on said trip or voyage, they are of the seas, canals, rivers and fires, and all other perils, losses or misfortunes that shall come or happen to the hurt, detriment or damage of the said goods laden on board of said boats on the voyage or trip aforesaid," excepting certain perils and losses which do not. include the misfortune which happened to the boat in question. It was also provided in the policy that in case of loss "and within thirty days from the time the same may happen, the said insured shall deliver to said company as particular an account thereof as the nature of the case will admit." Also, "that no suit or action against this company for the recovery of any claim upon, under or by virtue of this policy shall be sustainable in any court of law or chancery unless such suit or action shall be commenced within the time of twelve months next after such loss or damage shall occur."

With the policy a book was delivered to the insured, ruled in columns and having the following printed headings :

"Date; Account of; Vessel or Boat; From; To; Cargo; Amount; Premium; Signature of Approval."

Sherman Petrie was a forwarder engaged in business at 142 Broad street, New York. W. M. Onderdonk & Co. were insurance brokers, agents of defendant, and engaged in business at Nos. 1 and 3 Beaver street, New York. By the course

Statement of case.

of business between Petrie and W. M. Onderdonk & Co. the cargoes laden on boats were entered by Petrie or his clerk in this book, which was sent daily to W. M. Onderdonk & Co., and they approved or disapproved of the risk so offered. Their approval was indicated by entering in the column headed "Signature of Approval" the number of the page of their own book in which the risk was entered. This was the usual form of approval, but when risks were taken for "the harbor of New York" the approval of the agents was denoted by the word "harbor" written in the column headed "Signature of Approval."

The premiums were fixed by the insurance agents and charged to Petrie, who paid them monthly. October 17, 1887, Petrie loaded tho canal boat "C. L. Abel" with one thousand barrels Portland cement, and on that day entered in the columns of his insurance book: "Date, Oct. 17, 1887; Account of Sherman Petrie; Vessel or Boat, C. L. Abel; From New York harbor; To blank (except as the word 'harbor' extended into that column); Cargo, cement; Amount, $2,500; Premium, no entry; Signature of Approval, no entry," and sent the book to W. M. Onderdonk & Co. on the same or the next day, and thereupon they wrote the word "harbor" in the column headed “Signature of Approval," and returned the book to Petrie. The boat left Brooklyn October 19, 1887, and reached Tarrytown, its destination, the next morning, where later in the day it sank at its dock. The sinking was caused by the tide going out and grounding the boat at about its center, which caused it to break in two, so that it filled with water and destroyed the cargo. This action was brought December 1, 1888, to recover this loss. The defenses interposed were: (1) That the defendant did not insure the risk. (2) That a valid contract to insure was not entered into because the duration of the risk was neither measured by time nor termini of the voyage. (3) That the loss was not occasioned by the perils insured against. (4) That proofs of loss were not furnished within thirty days. (5) That the action was not begun within twelve months after the happening of the loss.

Statement of case.

85; Tyler v.

Joseph F. Mosher for appellant. The risk was never approved by the defendant or its agents, and the motion to dismiss on this ground was improperly denied. (Hortshorn v. S. & L. D. Ins. Co., 15 Gray, 240.) The court erred in charging the jury that if, as claimed by Petrie, the entry in the open policy book, "simply stated that the point of departure was from New York harbor, and did not specify where the voyage was to terminate, if the defendant chose to accept such a risk, it was within their power to do so," and the insurance was valid; and the exception to this part of the charge was well taken. (Abeel v. Redcliff, 13 Johns. 287; Roland v. Pickett, 2 Hill, 552; B. Church v. B. F. Ins. Co., 28 N. Y. 153; Manley v. U. M. & F. Ins. Co., 9 Mass. N. A. F. Ins. Co., 4 Robt. 151; De Grove v. M. Ins. Co., 61 N. Y. 594, 601, 602; Clark v. Brand, 62 Ga. 23; Strong v. H. F. Ins. Co., 37 Wis. 625; Schaefer v. B. M. Ins. Co., 33 Md. 109.) The court erred in excluding the question asked the witness Baker, as to what the words "New York" and "harbor" in the entry of the risk would indicate to an insurance man as to the terminus of the risk. (Nelson v. S. M. Ins. Co., 71 N. Y. 453; Bissill v. Campbell, 54 id. 353; 1 Phil. on Ins. [5th ed.] § 144; Astor v. U. Ins. Co., 7 Cow. 202; Child v. S. M. Ins. Co., 3 Sandf. 26; Dow v. Whitton, 8 Wend. 160.) No loss within the perils insured against was proved, and the motion for a nonsuit on that ground was improperly denied. (Van Wickle v. M. & T. Ins. Co., 97 N. Y. 350; 16 J. & S. 95; Wright v. O. M. Ins. Co., 6 Bosw. 269; 97 N. Y. 354; Berwind v. G. Ins. Co., 114 id. 231; Talcott v. C. Ins. Co., 2 Johns. 124; Prescott v. U. Ins. Co., 1 Whart. 399, 400, 407; Rugley v. S. M. Ins. Co., 7 La. Ann. 279, 282.)

Edwin G. Davis for respondent. The risk was assumed by the defendant. (Ruggles v. A. C. Ins. Co., 114 N. Y. 415; Garner v. F. F. Ins. Co., 35 N. W. Rep. 584; N. F. O. Co. v. C. Ins. Co., 106 N. Y. 535; Hartshorne v. U. M. Ins. Co., 36 N. Y. 172; Hancox v. Fishing Co., 3 Sumn. 132;

Opinion of the Court, per FOLLETT, Ch. J.

Savage v. C. E. Ins. Co., 36 N. Y. 655.) It was a valid risk and not confined to the harbor. (14 Am. & Eng. Ency. of Law, 334.) This was not a case in which the rule that "it is incumbent upon the plaintiff to prove the seaworthiness of the vessel" should apply, because the boat had reached her place of destination and the loss of the cement occurred through her stranding and straining, and no one had ever suggested anywhere that the boat was unseaworthy. (Earnmoor v. C. Ins. Co., 40 Fed. Rep. 847; Lunt v. Ins. Co., 6 id. 562.) Whether or no the defendant waived certain conditions of the policy was a question of fact for the jury, and upon sufficient evidence was properly submitted. (Ames v. N. Y. U. Ins. Co., 14 N. Y. 253; D. H. Ins. Co. v. Brodie, 11 S. W. Rep. 1016; Uhbrig v. W. C. F. Ins. Co., 101 N. Y. 362; Rehberg v. Mayor, etc., 91 id. 137; O'Brien v. P. Ins. Co., 76 id. 459; Short v. H. Ins. Co., 80 id. 16; Smith v. M. & T. Ins. Co., 39 id. 399; Wyncoop v. N. Ins. Co., 91 id. 478; B. F. Ins. Co. v. Pulver, 18 N. E. Rep. 804; Mayor, etc., v. H. F. Ins. Co., 39 N. Y. 46; P. F. Ins. Co. v. Pulver, 20 N. E. Rep. 18; Goodwin v. M. M. L. Ins. Co., 73 N. Y. 480.)

FOLLETT, Ch. J. The question which meets us at the threshold of this discussion is, was the evidence sufficient to justify the submission of the question, whether the defendant's agents approved of the application for this insurance? The authority of W. M. Onderdonk & Co. to bind the defendant by indorsing in the book in any form their approval of the risk proposed is not denied. Six days before the entry in question the insured entered on the same book an application for insurance on the boat "Delia McKeever" for $2,500 on cement, New York harbor, which was approved by writing the word "harbor" in the column designated "Signature of Approval." The insured testified that other risks were approved by the entry of the word "harbor" in the approval column. A clerk of the insurance brokers, who was sworn in behalf of the defendant, testified that he wrote the word