
    Jerry Petrie, Resp’t, v. The Phœnix Insurance Co., of Brooklyn, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Insurance (Marine) — Construction of policy — New York harbor.
    Plaintiff held an open policy, accompanied by a book to contain the risks proposed and taken. A proposal, instead of stating that the boat was to go from Brooklyn to Tarrytown, contained the- words, “ New York harbor” under the headings “ from” and “to.” The boat sunk on a bar at Tarrytown. Held, that Tarrytown was within New York harbor, within the meaning of that term as between these parties, and that the loss was covered by the policy.
    0. Same.
    The parties could contract without a definite place for the delivery of the cargo.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover the value of a cargo of cement shipped’ on the canal boat “ C. L. Abel ” from Brooklyn to Tarrytown, where the boat and cargo sunk, and the cargo became a total loss.
    
      Joseph F. Mosher, for app’lt; Edwin G. Eavis, for resp’t.
   Barnard, P. J.

The plaintiff held an open policy of insurance with the defendant’s company. The defendant, with the policy, gave » hook as part of it. This book was to contain the risks proposed and taken. The insured wrote the name of the insured, the name of the vessel and where from and where to the risk was to continue, the cargo and the amount of insurance. The open policy was of no force until the proposal was assented to and approved by the company and its agents. The present case shows two indefinite entries, out of which this action grew. The proposal, instead of stating that the boat insured was to go from Brooklyn city to Tarrytown, which would have been the correct statement under the facts proven, the entry was under the heading “from,” which would indicate the starting point, and “to," which would indicate the place of delivery of cargo. This was written under both words, “ New York Harbor.” What did the proposal mean? It seems plain that the words “New York Harbor” should be written as the place of starting and the place of delivery. When the book was returned the approval was expressed in the one word “ Harbor,” written under the heading, printed, “ Signature of Approval.” It was a disputed question whether this entry signified an approval. The agent who made it said that it did not. The insurer and his clerk say that it was the usual way in which approval was signified by the agent. The jury have found in favor of the plaintiff. It was also a question whether, assuming that the contract was from one port in the harbor of New York to another in the same harbor, the loss at Tarrytown was within the insured limit. The evidence fails to show any exact or even approximate certainty as to what was included in the term New York harbor. Proof was given tending to show that Tarrytown was within the harbor, and to the contrary that the harbor did not go beyond the northern limits of New York. Considering the point of dispute to be whether the risk was a canal or harbor risk, it is not difficult to place Tarrytown as within the harbor of New York, within the meaning of that term as between these parties. It was proper to prove, by expert witnesses, what New York harbor in a policy would indicate to an insurer. Nelson v. Sun Mutual Insurance Co., 71 N. Y., 453.

It may be doubted whether a question calling for the opinion of an expert as to what those words would indicate to an insurer was properly rejected, but no such point is presented. The witness, Baker, did answer the question in another form, subsequently, to the effect that the word Harbor would extend to the south boundary of the city of Yonkers. There was no error in the charge that the parties could contract without a definite place of delivery of the cargo. The case of Chadsey v. Guion, 97 N. Y., 333, only decided that a cargo of potatoes shipped and insured from New York to Yonkers, free from particular average and partly delivered before the loss occurred, was not a total loss, and that the liability of the insurers terminated upon a partial delivery. If the insured was bound to prove the vessel seaworthy as part of his case, the evidence is sufficient on that part to carry the cáse to the jury. She was proven to be seaworthy, and was sunk by a bar at Tarrytown, which was under the center of the boat, and as the side fell the two ends had no support, and the vessel broke and sunk from that injury.

The judgment should, therefore, be affirmed, with costs.

Dykmah and Pratt, JJ., concur.  