
    Ralph P. Mosher et al., Respondents, v. The Providence Washington Insurance Co., Appellant.
    (New York Common Pleas
    —General Term,
    April, 1895.)
    A marine policy insuring a vessel while navigating the rivers and canals of this state and the port and harbor of New York, without limitation as to the amount of freight to he carried, contained a marginal clause giving the “privilege of present trip New York to Baltimore and return to New York, with not exceeding 150 tons of cargo onboard either way.” The owners of the vessel contracted for the transportation of and loaded more than that amount, and endeavored to procure an amendment of the privilege clause in respect to the limit of freight, but were unable to do so and abandoned the trip. The vessel was burned while lying at the dock. Held, that the marginal clause applied only from the time the vessel should start on the contemplated voyage, and was not inconsistent with the wording of the general clauses of the policy, which covered the vessel while lying at the dock, and that the company was, therefore, liable for the loss.
    Appeal from a judgment of the General Term of the City Court of New York which affirmed a judgment entered upon a verdict directed by the court at Trial Term in favor of the plaintiffs.
    The action was brought upon a policy of insurance whereby defendant insured the “ good canal boat, A. D. Barber, at and from at noon the thirteenth day of March, 1893 (warranted by the assured to be then in safety), until at noon on the thirteenth day of March, 1894. * * * To be confined to the general freighting business in the navigation of the rivers and canals of the state of New York, the port, bay and harbor of the city of New York,” etc. No limitation upon the amount of freight which could be carried was made in this policy, but at the time of its delivery a marginal clause was inserted in writing by defendant’s agent as follows: Privilege of present trip New York to Baltimore and return to New York, with not exceeding one hundred and fifty tons of cargo on board either way.”
    On March 13, 1893, the plaintiff Mosher entered into a contract for the transportation of 250 tons of iron borings from New York to Wilmington,. Del., and loaded that quantity upon the boat at its dock in New York. Thereafter he applied to defendants for a change in the privilege clause to cover the amount loaded for the contemplated trip, which application was refused, and plaintiff announced his intention of abandoning the trip rather than proceed uninsured.
    On March twentieth the boat, while still lying at her dock, was destroyed by fire, one of the perils insured against, and became a total loss.
    Defendant sought to avoid payment of the amount called for by the policy upon the ground that by loading in excess of 150 tons with the intention of making the trip to Wilmington the plaintiffs had deviated from its terms.
    
      Upon the trial both parties moved for the direction of a verdict, and the trial court made such direction in favor of the plaintiffs for the amount claimed. The judgment was affirmed by the General Term.
    
      Hyland & Zabrishie, for respondents.
    
      Gcurpenter c& Mosher, for appellant.
   Bischoff, J.

Upon an appeal from a judgment, entered upon a verdict directed by the court after ^ootii sides have moved for a direction, it is to be assumed that the facts essential to the judgment were found by the court in favor of the successful party (Daly v. Wise, 132 N. Y. 309; Dillon v. Cockcroft, 90 id. 649), and we are concluded as to the weight of the evidence by the judgment of affirmance below. Dearing v. Pearson, 8 Misc. Rep. 269. There being evidence that the plaintiff owner, Mosher, had abandoned his intention of making the trip permitted by the marginal clause in the policy, that fact must here bo taken as established.

But appellant contends that the privilege clause intended an immediate voyage, to the completion of which the operation of the general clauses of the policy was suspended, and that, therefore, by reason of the plaintiffs’ loading in excess of the amount allowed by such clause there had been an actual violation of the policy which could not be affected by the insured’s subsequent change of intention in the absence of a new agreement.

Where there is an inconsistency between provisions of an insurance policy a written clause will control over one which is printed, and special provisions over general (Chadsey v. Guion, 97 N. Y. 333; Northwestern, etc., Ins. Co. v. Hazelett, 55 Am. Rep. 192); but there is a further rule of construction which requires that words of exception to or limitation upon a risk be taken more strongly against the insurer, and in the sense in which they would be naturally understood by the insured. Phillips Ins. § 131; 14 Am. & Eng. Ency. of Law, 285, 286, note 1.

In the application of the rules noted we are unable to give to this policy and its marginal clause the construction contended for by appellant.

Some insurance upon the boat while lying at her dock after March thirteenth must necessarily have been intended from the wording of the.general clauses, and there being no provision in the special clause covering insurance while at the dock, nothing inconsistent with the general clauses is thereby presented.

True, if a policy provides for insurance “at and from” a given point a deviation may be predicable of the vessel’s loading at the port of departure if an intention to substitute a voyage other than that provided for can be clearly shown; and so of a policy insuring “ from ” a certain port, but here the intention is to be looked for only in connection with actual sailing. Phillips Ins. § 992.

Where the word “at”- is omitted and the policy reads merely “ from ” a certain port the risk attaches only from the time when the vessel weighs anchor and breaks ground for the voyage with all the preparations completely made. Phillips Ins. § 945.

Here the special clause gave the privilege of a trip specified merely “New York to Baltimore,” etc., and an assumption that the insurance thereunder with the restriction against loading (which did not apply under the general policy) should commence “at” the place of mooring in New York, to the exclusion of the general insurance effected, would be to import a term into the clause for the purpose of defeating the policy, and this, too, in contravention of the meaning which the insured most reasonably could put -upon the words used, and which, as appears from the evidence, he actually did. ■

The judgments of the General and Trial Terms below should be affirmed, with costs.

Bookstaver and Giegerich, JJ., concur. ■

Judgments of General and Trial Terms below affirmed,' with costs.  