Rumsey, J.:
The plaintiff is the transferee of the bills of lading of certain goods said to have been shipped from Vera Cruz, Mexico, by Antonio Hoffman, doing business under the firm name of Hoffman Hermanos, upon the bark L. S. Ocmn, upon which the plaintiff procured valued policies of insurance to be issued by the defendant and other companies. The ship having been lost, he brought this action to recover from the defendant the amount of the policies. It is unnecessary to recite the various proceedings which have been had in this long and unfortunate litigation, but it is sufficient to say that upon1 the fifth trial the plaintiff recovered a verdict for the full amount of the policy, with interest. That verdict was set aside by the trial court and a new. trial granted,-and it is from that order that this appeal is taken.
The defense was that by far the larger portion of the goods insured was never shipped, but that bills of lading had been given for them by the master of the vessel in pursuance of a fraudulent conspiracy to which Hoffman was a party to the effect that fraudulent bills of lading should be given for a much larger amount of goods than were actually to be shipped, and that the master of the ship should scuttle it and abandon it at sea, so that the shippers might recover of the insurance companies for the amount of goods stated in the bills of lading to have been shipped.
It was conceded that the vessel was abandoned at sea by her crew, but did not sink, and after floating about for some months was finally recovered and brought into port at Norfolk. The seriously litigated questions upon the trial were whether there was such a conspiracy ; whether Hoffman was a party to it, and whether the goods mentioned and described in the bills of lading were actually shipped.
The learned justice who presided at the trial now under review [142]*142granted a new trial upon the minutes, not only because the verdict was against the weight of the evidence, hut upon the exceptions taken upon the trial and upon all the grounds stated in section 999 of the Code of Civil Procedure. While the order purported to have been granted upon all those grounds, it is to be assumed from the opinion of the learned justice that the special ground upon which he acted in granting the order was, that the verdict was against the weight of the evidence, or that the damages were excessive.
Upon this trial, as upon all the trials, an. effort had been made to show that Antonio Hoffman, the only member of the firm of Hoffman Brothers, was a party to the • fraudulent conspiracy which the ' defendant claimed was made. It was assumed by counsel and by the court that if the defendant was successful in its effort to establish to the satisfaction' of the jury that Antonio Hoffman was a party to the fraudulent conspiracy the plaintiff' could not recover. This case was sent to the jury upon that theory, and the learned justice required them to answer the question whether Antonio Hoffman was a party to an agreement to defraud the insurance company. It was answered by the jury in the negative, and upon the theory upon which the question was submitted to them that determination necessarily involved a verdict for the plaintiff for the full amount of the policy without reference to the fact whether, by mistake or otherwise, a large portion of the goods was not shipped so that the policy could not have attached to them. The learned justice was not satisfied with the conclusion reached hy the jury upon this point, and his order was evidently made upon the ground that the finding that Antonio Hoffman was not a party in the conspiracy to defraud the defendant was against the weight of the evidence, and that they should have found that he was a party and cognizant of ^ all the things done for the purpose of carrying it out.
In the conclusion which he reached upon this motion' we fully agree; It is quite true that there was no direct evidence to connect Hoffman with this conspiracy, but upon all the facts it would seem almost impossible that he was not cognizant of what was done while this vessel was being loaded. The evidence establishes beyond any question, in our judgment, the fact that the bills of lading made to him and his firm were fraudulent, not only because they stated to have been shipped a very large quantity of goods which were not [143]*143shipped, but in that they stated that many of the packages contained valuable goods while as a fact they contained articles of much less value or of no value at all. The existence of the conspiracy is conceded by the plaintiff.
The relationship of Hoffman to the parties guilty of this fraud and the fact that no one could profit by it to so great an extent as he, establish the likelihood of his participation in it, and when , is added to that the fact that he pretended to have no personal knowledge of the matter and relied largely upon the claim that he had purchased these goods, but refused an examination of his books which would have shown clearly whether or not he ever did buy them, it is quite satisfactorily shown that he was a party to the conspiracy, and knew what was being done by way of carrying it out. As the case was submitted to the jury upon the theory that if Hoffman was a party to the transaction the plaintiff was not entitled to recover, and the jury rendered their verdict upon a consideration of that question, then if that evidence would not sustain the verdict the case should be sent back for a new trial, although it is now said that this theory was not correct and that the case should have been submitted to the jury upon an entirely different idea of the law. Whatever may be the correct notion of the law now, whep the jury were instructed that a certain fact was decisive of the action and they reached a wrong conclusion upon that fact and thereby arrived at an incorrect verdict based upon that theory, justice requires that the verdict should be set aside and the case sent to another jury that they may consider it upon the correct theory. The plaintiff in this case is not entitled to retain a verdict which was reached against the weight of the evidence, although the question presented is one which upon a subsequent consideration of the case would seem to be less material than was supposed when the case was submitted.
But the learned justice at thd Trial Term presents in his opinion another ground for the granting of this new trial with which we concur. The jury were told that if Hoffman was not a guilty participant in this fraudulent conspiracy the plaintiff was entitled to recover the full amount of the policy although in fact a very material portion of the goods was not shipped, and it was expressly said to them that they were not allowed to give a verdict for the relative amount of the insurance. The evidence tending to show [144]*144that a very large portion of the goods called for by the bills of lading was never shipped was cogent; indeed, in our judgment there can be no question that such is the fact. It will be seen, therefore, that the necessary result of the direction of the court, that if the plaintiff was. entitled to a verdict at all he was entitled to recover the full amount of the policy, deprived this evidence of any force except so far as it tended to prove that Hoffman was a party to the fraudulent conspiracy.
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Rumsey, J.:
The plaintiff is the transferee of the bills of lading of certain goods said to have been shipped from Vera Cruz, Mexico, by Antonio Hoffman, doing business under the firm name of Hoffman Hermanos, upon the bark L. S. Ocmn, upon which the plaintiff procured valued policies of insurance to be issued by the defendant and other companies. The ship having been lost, he brought this action to recover from the defendant the amount of the policies. It is unnecessary to recite the various proceedings which have been had in this long and unfortunate litigation, but it is sufficient to say that upon1 the fifth trial the plaintiff recovered a verdict for the full amount of the policy, with interest. That verdict was set aside by the trial court and a new. trial granted,-and it is from that order that this appeal is taken.
The defense was that by far the larger portion of the goods insured was never shipped, but that bills of lading had been given for them by the master of the vessel in pursuance of a fraudulent conspiracy to which Hoffman was a party to the effect that fraudulent bills of lading should be given for a much larger amount of goods than were actually to be shipped, and that the master of the ship should scuttle it and abandon it at sea, so that the shippers might recover of the insurance companies for the amount of goods stated in the bills of lading to have been shipped.
It was conceded that the vessel was abandoned at sea by her crew, but did not sink, and after floating about for some months was finally recovered and brought into port at Norfolk. The seriously litigated questions upon the trial were whether there was such a conspiracy ; whether Hoffman was a party to it, and whether the goods mentioned and described in the bills of lading were actually shipped.
The learned justice who presided at the trial now under review [142]*142granted a new trial upon the minutes, not only because the verdict was against the weight of the evidence, hut upon the exceptions taken upon the trial and upon all the grounds stated in section 999 of the Code of Civil Procedure. While the order purported to have been granted upon all those grounds, it is to be assumed from the opinion of the learned justice that the special ground upon which he acted in granting the order was, that the verdict was against the weight of the evidence, or that the damages were excessive.
Upon this trial, as upon all the trials, an. effort had been made to show that Antonio Hoffman, the only member of the firm of Hoffman Brothers, was a party to the • fraudulent conspiracy which the ' defendant claimed was made. It was assumed by counsel and by the court that if the defendant was successful in its effort to establish to the satisfaction' of the jury that Antonio Hoffman was a party to the fraudulent conspiracy the plaintiff' could not recover. This case was sent to the jury upon that theory, and the learned justice required them to answer the question whether Antonio Hoffman was a party to an agreement to defraud the insurance company. It was answered by the jury in the negative, and upon the theory upon which the question was submitted to them that determination necessarily involved a verdict for the plaintiff for the full amount of the policy without reference to the fact whether, by mistake or otherwise, a large portion of the goods was not shipped so that the policy could not have attached to them. The learned justice was not satisfied with the conclusion reached hy the jury upon this point, and his order was evidently made upon the ground that the finding that Antonio Hoffman was not a party in the conspiracy to defraud the defendant was against the weight of the evidence, and that they should have found that he was a party and cognizant of ^ all the things done for the purpose of carrying it out.
In the conclusion which he reached upon this motion' we fully agree; It is quite true that there was no direct evidence to connect Hoffman with this conspiracy, but upon all the facts it would seem almost impossible that he was not cognizant of what was done while this vessel was being loaded. The evidence establishes beyond any question, in our judgment, the fact that the bills of lading made to him and his firm were fraudulent, not only because they stated to have been shipped a very large quantity of goods which were not [143]*143shipped, but in that they stated that many of the packages contained valuable goods while as a fact they contained articles of much less value or of no value at all. The existence of the conspiracy is conceded by the plaintiff.
The relationship of Hoffman to the parties guilty of this fraud and the fact that no one could profit by it to so great an extent as he, establish the likelihood of his participation in it, and when , is added to that the fact that he pretended to have no personal knowledge of the matter and relied largely upon the claim that he had purchased these goods, but refused an examination of his books which would have shown clearly whether or not he ever did buy them, it is quite satisfactorily shown that he was a party to the conspiracy, and knew what was being done by way of carrying it out. As the case was submitted to the jury upon the theory that if Hoffman was a party to the transaction the plaintiff was not entitled to recover, and the jury rendered their verdict upon a consideration of that question, then if that evidence would not sustain the verdict the case should be sent back for a new trial, although it is now said that this theory was not correct and that the case should have been submitted to the jury upon an entirely different idea of the law. Whatever may be the correct notion of the law now, whep the jury were instructed that a certain fact was decisive of the action and they reached a wrong conclusion upon that fact and thereby arrived at an incorrect verdict based upon that theory, justice requires that the verdict should be set aside and the case sent to another jury that they may consider it upon the correct theory. The plaintiff in this case is not entitled to retain a verdict which was reached against the weight of the evidence, although the question presented is one which upon a subsequent consideration of the case would seem to be less material than was supposed when the case was submitted.
But the learned justice at thd Trial Term presents in his opinion another ground for the granting of this new trial with which we concur. The jury were told that if Hoffman was not a guilty participant in this fraudulent conspiracy the plaintiff was entitled to recover the full amount of the policy although in fact a very material portion of the goods was not shipped, and it was expressly said to them that they were not allowed to give a verdict for the relative amount of the insurance. The evidence tending to show [144]*144that a very large portion of the goods called for by the bills of lading was never shipped was cogent; indeed, in our judgment there can be no question that such is the fact. It will be seen, therefore, that the necessary result of the direction of the court, that if the plaintiff was. entitled to a verdict at all he was entitled to recover the full amount of the policy, deprived this evidence of any force except so far as it tended to prove that Hoffman was a party to the fraudulent conspiracy. But the law is now settled by this court to the effect that if Hoffman was a party, yet if the plaintiff show that he or the consignee was a purchaser for a valuable consideration and procured the policy without knowledge of the fraud, he would be entitled to recover that proportion of the insurance which the goods shipped bore to the goods mentioned in the bills of lading. (Voisin v. Providence Washington Ins. Co., 51 App. Div. 553.) That this question was-an exceedingly material one cannot he denied because although it appeared that a large proportion of the goods was not shipped, yet the jury were absolutely precluded from taking that fact into consideration as bearing upon the question of damages. It is quite true that the plaintiff excepted to the charge to the jury that they could not find a verdict for a relative part of the goods, and, therefore, he cannot be said to be responsible for the error which was committed in the submission of the case to the jury. But while that fact relieves the-plain tiff from any responsibility which arose, yet it does not take away the injustice done to the defendant by the charge that the jury could not, under any circumstances, render a verdict for the plaintiff for any' sum less than the full amount of the policy. It does not appear that the defendant is responsible for this error of the court, and the necessary effect of the charge without any fault of the defendant was to take away from the jury a serious question which ought properly to have been submitted to them as to a fact which, upon the evidence, they could not disregard, and which would very materially diminish the amount of their verdict,
A careful consideration of the theory upon which this case was sent to the jury shows that the charge in that regard must have been harmful to the defendant. The theory was that the plaintiff was entitled to recover in any event unless the jury were satisfied that Antonio Hoffman was an actual participant in the fraudulent con[145]*145spiracy. When they had disposed of that question in the negative they necessarily were to give a verdict for the plaintiff. It may be said that that direction was erroneous. But that is of no importance after the jury have determined that the plaintiff was entitled to a verdict. The amount of the verdict was still to be fixed, and upon that question they should have been permitted to consider the quantity and value of the goods actually put on board, because the law is that under no circumstances can any one recover the full amount of the policy if a large portion of the goods insured was not shipped. (Voisin v. Providence Washington Ins. Co., 51 App. Div. 553.) So it will be seen that the failure to say to the jury that they might not render a verdict for the proportionate value which the goods shipped bore to that of the quantity mentioned in the bills of lading, even upon the theory upon which the case was submitted, was harmful to the defendant because it was satisfactorily shown that by far the greater part of the goods mentioned in the bills of lading was not put on board the ship, and the verdict was, therefore, excessive. The learned justice was, therefore, correct in giving this as a reason why the new trial should be granted.
In the case of Layman v. Anderson & Co. (4 App. Div. 124) a new trial had been granted upon the ground that the verdict was against the weight of the evidence, and upon an appeal from that order solely upon that ground this court reversed it. The case afterward came on to be heard upon exceptions. The point was then taken that as these exceptions were properly before the court upon the appeal from the order granting the new trial, and as the court had reversed that order, it necessarily followed that the rulings made by the court to which the exceptions had been taken had been sustained, and, therefore, the determination in the former appeal was a conclusive adjudication that the proceedings upon the trial had been correct. That proposition was sustained by this court, and a reargument. of the appeal from the order granting the new trial was directed, so that the exceptions might be considered, and upon the argument of that appeal this court, adhering .to its determination that the court erred in granting the new trial, because the verdict was against the weight of the evidence, nevertheless, affirmed the order, because the exceptions were well taken. So, therefore, upon this appeal not only [146]*146•are we not precluded from considering the exceptions taken upon the trial, but within the later case of Layman v. Anderson & Co. (22 App. Div. 152) we are bound to consider them, and if we come to the conclusion that material errors were committed upon the trial against the defendant we are bound to affirm the order without regard to the question whether the finding of the jury upon the evidence can be sustained.
An examination of this ease satisfies us. that there were several erroneous rulings upon the trial. As has already been made "to •appear, a serious question upon the trial was as to the quantity of the goods which had actually been shipped. The claim of the defendant was that there was a conspiracy between the master and several other persons, among them the shipper of these goods, to the effect that false bills of lading should be made; that the captain should scuttle his ship, so that there might be recovered from the insurance companies, including this defendant, the full amount of the insurance, although packages mentioned in the bills of lading contained filth and dirt of various kinds, instead of such valuable goods as-were said to have been shipped. It was admitted upon the trial that there was a conspiracy between certain parties other than Hoffman to scuttle this ship. That conspiracy being admitted, it will be seen that it was exceedingly important to show to what extent it was carried out with respect to the shipment of goods.
The plaintiff undertook tó show that substantially all the goods-mentioned in the bills of lading were shipped, and for that purpose he called one Malpica, who testified that certain packages were put aboard the ship, and he was able by refreshing his memory to recall the number of packages, although he was not able to state what they contained nor how large a quantity of any particular kind of goods was shipped.
After his testimony was given, a commission addressed to Antonio-Hoffman was offered in evidence. He, being asked whether his firm shipped any goods to the port of New York upon a vessel sailing from Vera Cruz in 1882, testified that all he knew about it was that he had receipts for the delivery of goods and bills of lading-given to the captain, and that in fact goods were shipped by Malpica, but he had no further personal knowledge of the shipment of the goods. It has been held upon one of the former trials of this [147]*147case that Hoffman’s testimony as to the shipment of the goods was not competent, as it was based only upon information derived from the bills of lading. (Voisin v. Commercial Mutual Ins. Co., 62 Hun, 4.) In accordance with that ruling, the testimony of Hoffman as to the actual shipment of the goods was excluded. He was then asked, “Please state as fully as you can the person or persons, firm or firms, from whom the firm of Hoffman Hermanos acquired the goods, if any, shipped on board the bark I. E. Conn in' or about the month of January, 1882.” That question was objected to upon the ground that he had no personal knowledge that the- goods were shipped, and, therefore, the evidence was incompetent; and upon the further ground that it was immaterial because it did not appear that any goods had been shipped. The objection was overruled and the witness was permitted to answer to that and subsequent questions upon the same subject, that his firm had purchased of various persons the goods which were included in the bills of lading. We think that this testimony was clearly not competent.
The only way in which it was important was as tending to show that certain goods had been shipped by the firm of Hoffman Brothers upon this vessel in the month of January, 1882. As to the actual fact of the shipment, Hoffman conceded that he had no personal knowledge, and at the time the evidence was given no evidence whatever had been given to show the shipment of any particular quantity of such goods, nor indeed had any competent testimony been given to show the shipment of any goods at all. It is quite true that Malpica had testified that he had carried goods from the shore to the ship, and he was able to state the number of packages, and that some being torn he saw what they contained, but he had no other knowledge as to the quantity or kind of the goods shipped or as to the places whence they had come or the persons who had supplied them, and there was no testimony as to the shipment of any goods by Hoffman Brothers because at that time the bills of lading had not been put in evidence. Therefore, the testimony which Hoffman gave amounted to proof not only that he had bought certain goods but that they were shipped on the I. E. Ccmn, but although he may have known that he had bought the goods, he had no personal knowledge of the fact of shipment. As-the interrogatory applied only to goods [148]*148shipped the jury must have received it as evidence not only that the goods were bought but that he identified them as the goods which were shipped on 'the bark. This testimony was exceedingly • important; the evidence as to the shipment was very meagre, and his testimony was an essential link in the chain of facts by which the plaintiff sought to prove his case. But it is evident that- the question required Hoffman to testify as to a fact as to which he himself admits that he’ had no personal knowledge. Therefore, this testi-' mony comes within the condemnation of the court upon the first appeal, where it was held that the ruling of the court in that regard was erroneous.
A witness upon whom the defendant relied to establish, the fact of the conspiracy and the falsifying of the hills of lading, was one Brooks, who was the master of the ship, and he testified as to "the conspiracy, the circumstances under which it was made, the persons who were in it, and the way it was carried out. He undertook to testify as to the quantity of certain goods shipped and this testimony went directly to the fact in issue. He was asked to state how the actual cargo shipped compared with the cargo stated to have been shipped in the hills of lading. There can be no question as to the grave importance of that question. An objection was taken to that question, and although the court did not rule that that question was incompetent, the objection was sustained as to the answer on the ground that the witness stated that “I think” there was a difference of between fifty per cent and sixty per cent, and the answer to that extent was stricken out, the reason given being that it was clear that the witness did not testify from his personal knowledge or recollection, but because he used the word “ think ” it was necessarily to be inferred that he only gave an estimate. As to the particular answer the error was cured because the question immediately afterwards asked wras, “ Q. That is, you gave bills of lading for sixty per cent more than there was actually shipped? A. Yes, sir, the number of packages.” So it is clear that as to this' answer no harm was done by the ruling. It is referred to, however, because it was the foundation of a similar ruling very hurtful to the defendant. It had been stated that a certain number of goat skins had been- shipped and the bills of lading called for fifteen. The question was1 asked, “ Do you remember how many bundles of skins there were that you received [149]*149at Vera Cruz ? ” and his answer was, “ I think there was five or six, sir — I don’t think there was more than that;” It is evident that this evidence was material. It was objected to upon the ground that it was merely the opinion of the witness and it was sustained upon that ground. It is to be remembered that this evidence was not. given on this trial for the first time, but it was the testimony of the; witness given on the previous trials which was read, by stipulation,, and had been apparently received upon the former trial without objection. The witness was not present so that the defendant offering it had no opportunity to ascertain whether or not his use of the word “think” meant simply that the witness was expressing his opinion or that he was using it in the ordinary sense of the word when one is testifying as to a fact within his knowledge, but as to the accuracy of which he is not sure. It seems to us that when this witness used the words “ I think ” in that connection it is fairly to be inferred- that he was testifying from his own knowledge. The whole case shows that he did have personal knowledge of the goods which were put aboard the ship, and when he was asked as to a fact presumably within his knowledge there necessarily arises a presumption that although he used a form of expression customary among men not able to speak precisely with respect to the fact asked about, he Was testifying from his own knowledge, and meant only that he was not certain as to the exact number of the bundles of skins put on board. The court was not, therefore, justified in assuming that because that phrase was used the witness was testifying simply as to a matter of opinion and for that reason to strike out the testimony. A like error was made by striking out the testimony of the same witness as to the number of bags of coffee actually put on board. The bills of lading called for 430 bags shipped by Hoffman. Brooks’ testimony was that only six or seven were actually shipped by him.
It was important to show not only the fact that there was a conspiracy, but also what was done in pursuance of it, and the rule is well settled in that regard that where prima facie evidence of a conspiracy is given, the declarations of the conspirators made in carrying it out are competent evidence. (People v. Van Tassel, 156 N. Y. 561.) One essential part of this conspiracy was that the shippers should put on board the vessel packages of dirt and filth and other articles of no value, under the name of valuable articles, [150]*150and they should be received as goods of value and so entered in the bills of lading. The captain of the ship was asked what was stated by the conspirators in his presence with respect to this matter, and he undertook to testify that certain of the conspirators stated that vanilla, bean bags were to be filled with dirt- and refuse, and that a large lot of stems and tobacco sweepings from the floor were to be entered as good tobacco and so put on the bills of lading. These declarations were made by one whom the evidence shows was a party to the conspiracy and at a time when the transaction was still going on and while the goods were being shipped on the bark. The declarations of Burrill and Jubilac on those subjects were excluded. Both of these men were parties to the conspiracy, and we think that this evidence was competent and should have been received. (1 Greenl. Ev. § 111.)
It is unnecessary to consider the other rulings upon the trial. Whether we say that the jury erred in their conclusion that Antonio Hoffman was not a party to this transaction, so that the defendant was deprived of its right to recover a verdict because of that erroneous finding, or whether we say that there were errors upon the trial which were harmful to the defendant, in either case the order of the trial court was correct and should be affirmed, with costs to the respondent to abide the event of the new trial.
Hatch, J., concurred; Patterson, J., concurred in result; Van Brunt, P. J., and Ingraham, J., dissented,