
    Frederick G. Van Vliet et al., Resp’ts, v. The Greenwich Insurance Co., App’lt.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed April 2, 1888.)
    
    1. Insurance (marine)—Burden of proof on insured to prove loss WITHIN POLICY.
    This action was brought to recover for damage to a cargo of malt, on board a canal boat, insured by an open policy issued by the defendant. Held, that the burden of proof rested on the insured to show that the loss arose from a peril of the kind insured against.
    2. Same—Burden of proof insured to prove seaworthiness.
    
      Held, that, regardless of the terms of the policy, the burden of proof was upon the insured to prove seaworthiness, whether the loss proceeded from a want of it or not.
    Appeal by defendant from judgment of $2,811.58, entered upon verdict in favor of plaintiffs and from order denying motion for new trial in this court.
    The action was brought to recover for damage to a cargo of malt, onboard of the canal boat “ George Knight,” in transit from Newark to New York, insured by an open policy issued by defendant.
    
      L. L. Van Allen, for resp’ts; Robinson, Scribner & Bright, for app’lt.
   Daly, J.

There was no proof of any loss within the peril insured against, and no proof of the seaworthiness of the boat. The burden was on the plaintiff, the insured to prove both.

A motion was made to dismiss the complaint on these grounds, at the close of the plaintiffs’ case, and denied and exception taken. The proof was not supplied. The insured must prove that the loss was caused by one of the perils insured against. 2 Greenl. Ev., 385, 381.

The burden of proof is on the insured to show that the loss arose from a peril of the kind insured against. 2 Parsons Mar. Ins., 518.

In this case the only evidence was that when the boat was brought in the malt was in a damaged condition. It is not sufficient to prove that the goods were in a damaged state when they were landed, to entitle the plaintiff to recover. Coles v. Marine Ins. Co., 3 Wash. C. C., 159).

As to seaworthiness, the burden of proving it is upon the insured. Tidmarsh v. Wash. F. and M. Co., 4 Mason, 439; Moss v. Sun Mu. Ins. Co., 1 Duer, 159.

Regardless of the terms of the policy, the onus is upon the insured to prove seaworthiness, whether the loss proceeded from a want of it or not. Rogers v. Sun Mu. Ins. Co., 14 J. & S., 65.

There are authorities to the contrary collected in Berry-man’s Digest of the Law of Insurance (see note to' page 1450) showing that a different rule is adopted in other states and in England, and was laid down in one case in the U. S. courts. 1 Curtis C. C.

But in this state the principle set forth in the cases above cited, that the burden is upon the insured to prove unseaworthiness, has been adopted, and enunciated in a late case in the court of appeals. Van Wickle v. Mech. Ins. Co., 97 N. Y., 350.

We are hound to follow this authority, and the judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide event of the new trial.

Van Hoesen, J., concurs.  