Rosenberg v. Globe & Rutgers Fire Insurance , 225 N.Y.S. 545 ( 1927 )

Finch, J.

This action was brought upon a policy insuring plaintiffs against loss by perils of transportation, including theft. The policy covered “ men’s clothing.” Certain piece goods which had been cut, together with the necessary trimmings such as linings, canvas, buttons, etc., were sent from New York to Philadelphia, there to be assembled and the process of manufacture into men’s clothing completed. The normal period of completing the manufacture would have been approximately three weeks, and the cost about $5,000 out of a total value when completed of about $7,500. At the close of the plaintiffs’ case both sides moved for a directed verdict, and the learned trial court found in favor of the defendant. With this finding we are in accord. The goods lost were not covered :by the. policy in question, which, as noted, covered only men’s clothing. The mere addition of the words “ in transit ” does not extend the ordinary meaning of the words used in the policy describing the articles insured. The words “ men’s clothing ” have a well-recognized meaning, namely, men’s finished outward wearing apparel. Such a shipment is a different shipment from shipping a bundle of buttons and a bundle of trimming and a bundle of piece goods cut in certain lengths and patterns. The plaintiffs themselves describe the goods as “ cut goods ” in their proof of loss. The goods could not even be said to be substantially manufactured into men’s clothing, since approximately five-sevenths of the cost of manufacture had not yet been completed.

It follows that the articles lost were not what was insured, and it is unnecessary to consider the other grounds urged to sustain the judgment.

The judgment appealed from should be affirmed, with costs.

Dowling, P. J., and Merrell, J., concur; McAvoy and Proskauer, JJ., dissent.