App. Div.]

FOURTH DEPARTMENT, JANUARY TERM, 1903.

We think the evidence wholly fails to show that any sufficient excuse existed for the removal of the vessel in question from the Erie basin upon either occasion without notice to the defendant; that such removal was in violation of the warranty on the part of the assured, and was such as to prevent a recovery in this case, especially so in respect to the removal of the boat in February. The only suggestion made on behalf of the plaintiffs is that the boat was leaking, and had leaked sufficiently to injure a little of the cargo. There is no suggestion that on the day when removed it was leaking worse than upon other days. The evidence is only susceptible of one interpretation, to wit, that for his own purpose and convenience the assured desired to discharge his cargo in February rather than to hold it until the opening of navigation, and did so in violation of the warranty contained in the policy, without the knowledge or consent of the defendant.

It is urged that this breach of warranty is not available to the defendant as a defense because not pleaded in its answer. We think the position is untenable. There can be no doubt of the correctness of the rule invoked by the respondent, to wit, that where a complaint contains a general allegation of performance, a denial such as was interposed in this case does not raise any issue as to the non-performance of any of the conditions precedent, except the one which it specifically alleged was not performed. (Elmer v. Mutual Benefit Life Association, 19 N. Y. Supp. 289; affd., 138 N. Y. 642; Rau v. Westchester Fire Ins. Co., 50 App. Div. 428.)

The rule, however, has no application where the proof tending to establish non-performance of a condition precedent was given and received in evidence without objection. The whole matter is summed up in Mandeville v. Newton (119 N. Y. 10, at p. 14), where the court said: "The real transaction was the subject of investigation on the trial, and was litigated without any objection being raised that the evidence was inadmissible under the pleadings. The first time that the question was raised was when findings based on the pleadings were proposed by the plaintiff. The referee was, we think, justified under the circumstances in refusing to find in accordance with the alleged admissions."

It was said in Elton v. Markham (20 Barb. 343) that the objection that a denial is a negative pregnant is a formal one, and unless

FOURTH DEPARTMENT, JANUARY TERM, 1903.

[Vol. 79. objection is made before the trial, will be waived and each allegation regarded as controverted.

In Brett v. First Universalist Society of Brooklyn (63 Barb. 610) it was held that the objection that evidence is not admissible under the pleadings must be taken at the trial.

Any number of cases to the same effect might be cited. It would be a strange proceeding in the administration of justice, if the defendant in a case discovers for the first time upon the trial that the plaintiff has done or omitted to do something which would prevent a recovery, and evidence is given pro and con upon that question, without objection and without any suggestion that the defendant's answer is not sufficient to enable such question to be litigated, to hold that such defendant is not entitled to have the evidence so received considered. We think no authority can be found which sanctions such a practice.

In Farmers' Loan & Trust Co. v. Housatonic R. R. Co. (152) N. Y. 251) the court said: "The learned counsel for the defendant complains that the cause was tried outside the pleadings, and in the same manner as if the action had been brought for the recovery of the salary. If this contention were correct it would not be a fatal objection in this court, in the absence of some specific objection to that course, since parties may, if they so elect, depart from the strict issues made by the pleadings and try other questions relating to the merits of the controversy, by consent or acquiescence."

In Drennan v. Boice (19 Misc. Rep. 642) the court said: "Without objection proof was given by the defendant which established a complete defense to the action, and while this defense was not pleaded, the plaintiff's consent to the litigation of it was to be inferred from his failure to oppose the introduction of the evidence as irrelevant to the issues." (Citing Frear v. Sweet, 118 N. Y. 454).

And in the latter case it was further held that the court in reviewing such a case is only called upon to determine whether the parties have consented to try the substituted issues, and if so whether the decisions of the court upon those issues are according to law. And further, that in the absence of amended pleadings or of stipulation, the court of review must infer the consent to try such substituted issues from the evidence offered upon the one side, and the

App. Div.] FOURTH DEPARTMENT, JANUARY TERM, 1903.

absence of objections or the character of the objections upon the

other.

If upon the trial of the case at bar the defendant had discovered facts which led him to suppose that the assured had willfully burned the vessel in question, and had introduced evidence which established that fact without objection on the part of the plaintiff or without suggestion that the answer did not raise such an issue, it would hardly be contended that the trial court would be justified in disregarding the evidence thus given, and notwithstanding it direct a verdict in favor of the plaintiff. According to the view which we have taken of this case, upon the evidence as it now stands, the fact that the assured about the first of February removed the vessel in question from the Erie basin for the sole purpose of discharging her cargo, and without the knowledge or consent of the defendant, is equally as fatal to a recovery by the plaintiffs.

The conclusion of the learned trial court that the canal boat in question was moved from the Erie basin on the 16th day of March, 1899, for the sole purpose of repair, with a view to protecting it against loss and damage, we think is against the weight of the evidence. It appears that two days prior to that time the master had made a charter to carry a cargo of fertilizer from Carteret, N. J., to Southport, Conn., with usual dispatch. He immediately connected up the machinery of his vessel; went to the dry dock in Jersey City; had her put in proper repair; went to Communipaw, got a supply of coal, and started down the bay exactly in the direction of Carteret, and was following that course, with his own steam, when the boat was disabled and he was compelled to tie up at the pier in Bayonne, where the boat was destroyed by fire the following morning. The evidence of Lewis is that he was on his way to Burlee's dry dock. He had never had any repairs made at that dry dock. The evidence clearly indicates that the repairs which he claims were necessary could have been made at the Erie basin, or at the dry dock in Morris basin if he had waited his turn; still he takes the boat miles away in the month of March, to have her, as he says, repaired and made seaworthy. Upon this question the evidence is substantially the same as upon the former trial, and we agree with the justice who then presided that a verdict for the plaintiffs was against the weight of the evidence.

FOURTH DEPARTMENT, JANUARY TERM, 1903.

[Vol. 79.

For all the reasons above stated we think the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.

ADAMS, P. J., and Hiscock, J., concurred; dissenting opinion by SPRING, J., in which WILLIAMS, J., concurred.

SPRING, J. (dissenting):

The stipulation of warranty contained in the policy that the boat is "to be securely moored in a safe place satisfactory to this Company," is to be construed in connection with other provisions in the policy. The defendant was expressly exempted from liability for unseaworthiness or from "any neglect in not keeping the vessel well pumped out," and the duty was also imposed upon the insured that the vessel should "be tight." There was the further provision that it was incumbent upon the insured "to sue, labor and travel for, and to make all reasonable exertions in and about the defence, safeguard and recovery of the said vessel or any part thereof, without prejudice to this insurance."

That is, inasmuch as the insurance extended to other losses than by fire, the company required the insured to use prudence and caution in keeping his vessel in a seaworthy condition.

The boat was moored at Erie basin on the tenth of December, and it was loaded with corn. In February it was leaking badly and sixty bushels of corn were spoiled, and the captain of the boat, therefore, removed it to Morris basin, unloaded his cargo and returned to the Erie basin. We apprehend this removal of the boat did not vitiate the contract of insurance. The courts will not put that interpretation upon an agreement which will result in a forfeiture, unless no other construction can be fairly spelled out of its terms. Two things the owner of the boat desired to do: First. To get rid of his corn which was being damaged, and, second, to repair the boat. Had he allowed the boat to remain moored at the Erie basin and sink or become unseaworthy he very properly would have been charged with negligence. It certainly was a question of fact whether under all the circumstances this was a proper exercise of the care required of him.

The vessel continued to leak during the winter and the owner endeavored to stop it by caulking, but the leaking increased until

App. Div.]

FOURTH DEPARTMENT, JANUARY TERM, 1903.

about the tenth of March it grew more apparent. He, therefore, took his boat again to Morris basin at Lawless' dry dock, about two miles from where it was moored, to have it repaired. The repairs were made and he went to another dock close at hand and took on two tons of coal to enable him to get back to the Erie basin. He there discovered that the stay bolts had been wrenched out and to repair these it was necessary to go where there was a machine shop. His pilot arranged to have this done at Burlee's dry dock, four miles farther down. He started for that place, stopped over night at Bayonne, where the fire occurred. Before leaving Erie basin he endeavored to get into a dry dock in that basin to have his boat repaired, but was unable to do so. Again I think it was a question of fact whether he acted properly and within a fair endeavor to repair his boat. Irrespective of any provision in the policy this duty was incumbent upon him. (Union Insurance Co. v. Smith, 124 U. S. 405, 427; Berwind v. Greenwich Ins. Co., 114 N. Y. 231, 234.) He could not sit by and allow his boat to sink through his own carelessness and then hold the defendant liable on its policy.

It is suggested that New York harbor is filled with floating ice in the month of March and the risk was consequently increased. Loss from ice the defendant by its policy is expressly relieved from.

It is contended that the real reason for the owner of the boat leaving Erie basin was to fulfill a contract to take a load of merchandise to Carteret, N. J. This was a question of fact and the evidence fully justifies the conclusion of the court adversely to this suggestion. Lewis, the owner of the boat, testified to the reason which induced him to go to Lawless' dry dock. He further testified that it would take twelve tons of coal to make the trip to Carteret; that he had not taken on sufficient provisions or engaged any crew for this trip. This is corroborated in a measure by the evidence of the pilot, who testified that after he reached Lawless' dry dock and discovered the serious injury to the boat he called up the proprietor of Burlee's place and arranged to have the boat repaired at that dock. The evidence, therefore, is quite clear that the motive of the owner of the boat in leaving the Erie basin was to mend its leaky condition.

The evidence clearly shows also that the owner of the boat was not seeking to spirit it away without the knowledge of the defend