Budco Associates, Inc. v. Royal Exchange Assurance of America

53 A.D.2d 568, 384 N.Y.S.2d 819, 1976 N.Y. App. Div. LEXIS 13191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1976
• Status: Published

Opinion

Judgment in plaintiffs favor entered in the office of the clerk of the Supreme Court, New York County, on September 5, 1975, unanimously affirmed, with $60 costs and disbursements to respondent. Issues of credibility in the conflicting testimony between plaintiffs general manager and the truckman delivering parts for a roller coaster to the amusement park, as to whether plaintiff accepted delivery of the two cases in plaintiffs parking lot were properly given to the jury. In addition, the court correctly submitted to the jury the question whether said goods were "in transit” or had been delivered when the loss through fire occurred, inasmuch as the insurance policy which covered the freight provided that "insurance attaches from the time the goods leave * * * the insurance continues whilst the goods are in transit * * * until delivered to the final * * * destination named in the policy”. Implicit in the submission was the question whether plaintiff exercised dominion over the goods so that it might be said delivery had occurred. The trial court was correct in refusing to hold as a matter of law that delivery was completed when the truckman left the freight on a trailer in the parking lot, in light of evidence showing that on six previous occasions similar freight had been delivered an additional distance, to the amusement area where a roller coaster for which the parts were intended was being erected. (See Loveless Mfg. Co. v Roadway Exp., 104 F Supp 809, 812; Pulitzer Creations v Phoenix Ins. Co., 47 Misc 2d 801, affd 52 Misc 2d 934.) Concur—Kupferman, J. P., Murphy, Lupiano, Birns and Lane, JJ.