Lynch v. American Eagle Fire Insurance — 247 N.Y. 600

Majority

p. 600

Myrtle B. Lynch, Doing Business under the Firm Name of Myrtiles, Appellant, v. American Eagle Fire Insurance Company of New York, Respondent.

Headnote

Insurance — policy insuring merchandise against loss while in custody of any transportation company — bags stolen from taxicab in which insured was a passenger — not in custody of carrier within meaning of policy.

Lynch v. Am. Eagle Fire Ins. Co., 220 App. Div. 196 , affirmed.

(Argued February 21, 1928;

decided March 27, 1928.)

Appeal from a judgment, entered April 15, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint. The action was to recover upon a policy of insurance “ on trunks and samples of merchandise ” in the charge or control of the assured or their traveling representatives “ while in the custody of any transportation company, or while in automobiles, or while in the custody of any common carrier in transit,” subject to the exception that it did not insure against loss by theft “ of property in the custody of the assured or their traveling representatives and/or on railroad cars, steamship, or other carriers or conveyances.” Plaintiff placed bags containing merchandise in a taxicab in which she was a passenger and on arrival at her destination alighted leaving the bags therein. On her return after five minutes she found the bags had been stolen.

p. 601

Wilbert J. Ryder for appellant.

Louis Cohn for respondent.

Judgment affirmed, with costs, on the ground that the lost bags were not in the custody of the carrier within the meaning of the policy.

Concur: Cardozo, Ch. J., Crane, Andrews, Lehman, Kellogg and O’Brien, JJ. Dissenting: Pound, J.