
    Ralph C. Moser et al., Respondents, v. The Providence Washington Insurance Co., Appellant.
    (City Court of New York
    General Term,
    October, 1894.)
    The mere fact that the assured, under a policy of marine insurance, agree to carry to a point outside the limits of the policy and contrary thereto will not nullify the policy, although freight in excess of a privilege therein is accepted, provided they elect not to carry out such contract before the commencement of the trip.
    Plaintiffs held a policy of marine insurance which confined their freighting business to certain rivers and canals. Wishing to carry a cargo to Baltimore, they obtained a privilege to do so, which contained a limitation as to the amount to be carried. Upon learning of such limitation they stated that unless the limitation was increased they would abandon the trip; and, upon a refusal, said they would wait until Monday to decide whether to take the amount stated or go uninsured. Before that day the vessel was destroyed. Held, that there was no acceptance of the privilege, and that the policy was not avoided.
    Appeal from judgment in favor of the plaintiffs, entered on a verdict directed by the court.
    Action upon a policy of marine insurance.
    
      Carpenter c& Mosher, for appellant.
    
      MylcmcL dk ZabrisT&ie, for respondents.
   Fitzsimons, J.

The plaintiffs insured in the defendant’s company their canal boat, the A. D. Barber, for the period of one year, commencing March 13, 1893, the boat to be confined to the general freighting business in the navigation of certain rivers and canals mentioned in the policy.

The plaintiffs desiring to carry a cargo of iron boring and turning to Baltimore, which they could not do under the policy, applied to the defendant for the privilege of doing so, which was granted as follows: Privilege of present trip, New York to Baltimore and return to New York, with not exceeding 150 tons cargo on board either way.”

Under the policy issued by the defendant, the plaintiffs had the right to carry any number of tons of freight within the waters named therein; the freight that plaintiffs might carry to Baltimore was limited in the privilege just mentioned to 150 tons.

When the plaintiffs read said limitation they called upon the defendant, and claim that they stated that, if the limitation was not increased to 250 tons, they would abandon the proposed trip to Baltimore and discharge the cargo; that they would not let their boat be moved until the policy was fixed.

From this statement it would appear that plaintiffs abandoned the proposed trip to Baltimore, which they, of course, had a right to do.

They then might have discharged their cargo or have transported it to any place within the limits prescribed by their policy, or allowed it to remain on board their boat until they found it impossible to have the limit of 150 tons increased, as they desired, and then have discharged it; and if this testimony had not been contradicted, the direction of the learned trial justice to the jury to find a verdict in plaintiffs’ favor was right.

The mere fact that plaintiffs agreed to carry to a point outside the limits of their policy, and contrary thereto, did not nullify the policy, even though they actually accepted freight in excess of their privilege under the policy and in pursuance of such agreement, providing they elected not to carry out such contract before the commencement of the trip, which is their contention herein.

We find no contradiction of the plaintiffs’ testimony, just related, in the record submitted.

In fact, the defendant’s agent testifies that when he refused to increase the limit to 250 tons, one of the plaintiffs said, I will wait until Monday morning to decide whether to take nut 100 tons or go uninsured,” clearly showing that the plaintiffs did not intend to accept the privilege of the trip to Baltimore until Monday morning.

Before that time the boat was destroyed.

Tlius, in our judgment, the privilege was not accepted, and never became operative.

Therefore, the trial justice was right in directing a verdict in plaintiffs’ favor, the policy never having been avoided.

The judgment should be affirmed, with costs.

Ehrlich, Oh. J., and Eewbubger, J., concur in result. Judgment affirmed, with costs.  