In 1896 the plaintiff owned a canal boat in use on the Erie canal, which was insured by defendant in the sum of $1,700. On August 9, 1896, the boat ran against some concealed rocks in the canal near Pendleton, in the county of Niagara, and was badly injured. It was loaded with 8,000 bushels of wheat which became water-soaked and swelled, causing the boat to spread apart about three feet. The plaintiff promptly notified the defendant of the accident, and the next day its agent came from Buffalo and took possession of it for the purpose of making repairs, and it was towed to Buffalo.
By the terms of the policy it was provided that, in case disaster befell the boat, the defendant should select one surveyor and the plaintiff one, to ascertain and report by specifications, in writing, under oath, “ both the amount of the work and the manner in which it shall be done to make said vessel good for any damage caused by the disaster, without making good defects caused by. rottenness,” and for the latter defects, if they were essential and so reported by the surveyors, the whole expense thereof was to be borne by the assured. The policy provided, also, for the way in which the repairs should be made. It further provided that no partial loss should be paid by the assurer unless in excess of $100, and if the repairs cost to exceed that sum, *6$100 thereof should be paid by the assured, which was designated : “ Particular average $100.00.” Surveyors were chosen by the parties and specifications duly prepared by them, and the repairs were made in conformity therewith. The repairs were made by one Murphy, and in connection therewith he did extra work regarded as advisable to make the boat seaworthy, and the bill for this amounted to $319.72, and it was this extra work which gave rise to the controversy between the parties.
It is undisputed that the specifications made by the surveyors did not include those repairs made by Murphy for extra work. There is no pretense, therefore, that the defendant ever expected to pay for these repairs, and it is likewise patent that the extra repairs were due to the inherent decay of the timbers and in no way chargeable to the accident, and yet were proper to make the boat suitable for use. The case, therefore, presents this somewhat anomalous situation: The boat came lawfully into the possession of .the defendant to make the repairs consequent upon the disaster. The defendant complied substantially with the conditions of the policy it issued to plaintiff, causing the repairs to be made in conformity to the specifications and paying therefor. The possession of Murphy was its possession, constructively, and the warrant for it was solely the necessity for repairing the boat. The plaintiff ordinarily would be entitled to the return of his boat upon paying his average of $100. But other repairs were made by Murphy, who was in actual possession. If they were made under proper employment or authority, then he had a right to retain the possession of the boat until his claim was paid. These deductions are. elementary. If Murphy declined to surrender the boat unwarrantably, then the defendant would be liable, for it was responsible for the possession of Murphy, and when the specific purpose of that possession was accomplished it must see that the boat was restored to the plaintiff. If it omitted to do so, upon demand, conversion would lie; that is, ordinarily, the plaintiff would not be obliged to look to Murphy for his boat, who was not employed by him to make the repairs contemplated by the surveyors.
In stating that the possession of Murphy was that of the defendants I have taken the most favorable view of the evidence for the plaintiff, as he is entitled to that on this motion. The defendant’s *7counsel insists that Murphy was in possession by the consent of both parties, and that when the defendant paid its portion of the expenses it was absolved from any further liability and the plaintiff was relegated to his remedy against Murphy. The contract of insurance provides that the insurer may enter into a contract to make the repairs, and this implies that it must pay therefor. The surveyors may determine that there are “ defects caused by rottenness ” requiring repair, and may include them in the specifications. The plaintiff is liable for the payment of such repairs, but it cannot be that the person who makes them by virtue of a contract with the defendant must obtain his compensation from the plaintiff. The ■contract is with the defendant, not with the plaintiff. The defendant is primarily chargeable with the payment of all the repairs provided for in the specifications, and it then holds its claim against the plaintiff for whatever is chargeable to him. That was the evident construction given by the defendant to the policy in this case. It made the contract with Murphy without any consultation with the plaintiff, and it did not even carry out that provision in the policy requiring the contract to he let to the lowest bidder. It ■assumed that the plaintiff had nothing to do with that matter, but that the question of repairs was exclusively committed to it; that Murphy was in its employ—its agent — and the consequent deduction must be that his possession was its possession. Even if this be too rigorous a construction of the contract of insurance against the •defendant, we cannot say, as a matter of law, that Murphy had the custody of the boat by the joint direction of the parties. At best it is a question of fact for the jury. Of course, if Murphy were in possession, either under the joint proprietorship of the parties or under a special agreement with the plaintiff to make repairs for him, this action would not lie, for the defendant could not then be required to exact surrender of the boat by Murphy.
We are, therefore, brought down to the narrow margin, was there -evidence sufficient for the jury to say that the extra work performed by Murphy was not authorized by the plaintiff ? If so, the •detention by Murphy and consequently by the defendant was without authority and this action is proper. If not, then defendant is not liable, for if plaintiff employed Murphy, of course the defendant cannot be made the whipping post for their troubles.
*8When the boat was brought in for repairs the plaintiff claimed he was not well, and desiring to go to New York, by power of attorney, he authorized one Homer to act for him, “ in all matters pertaining to holding survey and repairing damage done to my canal boat George Murr in consequence of sinking in the Erie Canal on or about August 6, 1896, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present.” By this instrument the power vested in Homer was limited to the reparation of damages “ in consequence ”' of the accident, and hence, if he made any agreement with Murphy for extra work he transgressed his special authority. Again, the rottenness of the boat ivas not “ in consequence ” of the accident.. That was an intrinsic defect. To be sure, if the surveyors saw fit to require such defects to be repaired, the plaintiff could be charged therefor,' and Homer within the scojje of his agency could have-provided for them. The surveyors did not require them to be made, and the defendant did not let the contract to the lowest bidder. It assumed exclusive control, and turned the boat over to Murphy, its surveyor, to make the repairs and without consultation with or notice to the plaintiff.
The supplemental agreement of the parties preliminary to the-selection of appraisers to ascertain the “ actual damages sustained by the said vessel in the late disaster by sinking near Lockport, N.. Y.,” did not alter the policy. That was simply to make effective the adjustment and reparation of damages to' the boat. It emphasizes the contention, however, that Murr did not intend to make the-repairs due to decay, for no provision is made therefor. Murr probably was seeking to avoid that expense, and this additional agreement, therefore, omits any reference to inherent defects. This, construction is confirmed by the conduct of the defendant in assum- ' ing exclusive control and possession of the boat. The power of attorney to Homer was executed after this supplemental agreement,, but before the report of the appraisers. One selected had not acted, and among the duties committed to Homer was the choosing of another to act, and other questions might arise within the letter of his special authority.
*9The restriction in the power of attorney is important, because Murphy claimed the employment was made by Homer for the plaintiff. The case was tried once before, resulting in a verdict for the plaintiff, which was reversed by this court. (24 App. Div. 390.) On the former trial the* defendant relied upon verbal declarations of Homer, either independent of the written power of attorney, or in interpretation of its meaning, and Homer, testifying for the plaintiff, stated that the plaintiff told him “ to take care of the boat and do the best I could.” In the opinion of this court considerable stress was laid upon this declaration as supplementing the power of attorney, and that Murphy, therefore, under the employment of Homer, had a valid lien which plaintiff must pay before he was entitled to the return of his boat. Homer was not sworn as a witness for the plaintiff on the second trial, but was put on the stand by the defendant, though evidently in sympathy with the plaintiff, and he sought to mollify or explain this testimony to meet the exigency caused by the comments in the opinion referred to. He testified that Mayer, the agent of the defendant, spoke to him about the necessity of putting in the boat “ some new floor timbers, new keelson, and new bilge keelson,” and he replied that he “ would write to Murr about that; ” that this was on Friday morning, the day the surveyors were estimating the repairs required, and that he at once advised the plaintiff by letter what Mayer had told him; that Murr came on to Buffalo on Tuesday and told him he should not want any of the extra work done. Murr confirmed this statement, and added that he told Mayer on this Tuesday that he would only pay the $100. If this testimony is correct, then there was no authority for Murphy to make the extra repairs. Again, Homer testified, contrary to his evidence on the former trial, that plaintiff did not tell him “ to take care of the boat and do the best I could; ” that what he meant by saying that he was directed “ to see that the work was properly done, referred to the work which the insurance company had to do.” He also testified that he never gave any authority whatever, either to Mayer or Murphy, to make any repairs on the boat not called for in the survey. Mayer testified that Homer made the arrangement to put in the new floor timbers and the new keelson, and the price was agreed upon between them.
*10This is substantiated by Lyons, Cole and Murphy. Cole was the surveyor selected by Homer to represent the plaintiff, and testified that he suggested the propriety of having these repairs made, which were not due to the accident, but advisable for the preservation of the boat, and that they could be made more cheaply and advantageously in connection with the other repairs than later on; that Homer fell in with this suggestion, and the witness testified that he was present and heard the arrangement made between the plaintiff and Murphy, substantially as testified to by the latter. We have, therefore, four witnesses, two at least of whom are disinterested, giving a version as to the nub of the controversy in diametric opposition to the story related by the plaintiff and Homer.
It is urged with much cogency that the collateral circumstances are in strong confirmation of the defendant’s witnesses; that it is conceded these extra repairs were essential; that the defendant certainly gave no warrant for them; that they were in fact rendered by Murphy, and there is no intimation that his charges are exorbitant or that the work was improperly done. The rule, however, has been very pointedly laid down by the Court of Appeals that the credibility of witnesses must be first passed upon, by the jury. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158.)
That case is quite analogous to the present one. The plaintiff while riding on the top of a box car was struck by a bridge over the track and sustained injuries. He testified on the first trial that he had been riding on this train for over three weeks, passing daily under this bridge and often on a box car. The Court of Appeals reversed a recovery on the ground that he knew, or should have known, that the bridge was too low for him to pass under while on the box car, and that he was, therefore, within the principle of assumed risks. On the next trial the plaintiff, knowing the precise point upon which his former judgment was overturned, testified that he had never passed under this bridge on a box car, and “ that he did not know it was a low bridge.” The plaintiff was nonsuited, presumably on the ground that he had changed his testimony to meet the emergency. The Court of Appeals reversed the judgment of nonsuit on the ground that the credibility of the witness was for the jury, adding: “ On one of the trials it is quite likely that the *11plaintiff’s testimony was truthfully given, but whether on the first or the second trial was for the jury, not the court, to determine.” If the jury decided against the clear preponderance of the testimony the court can rectify the error by granting a new trial. (Rollins v. Brooklyn Heights R. R. Co., 44 App. Div. 474.)
The credibility of Homer was vouchsafed by the defendant, as he was its witness. It should not stand sponsor for him and then assert he was utterly without belief because he did not happen to meet its expectations.
Whatever, therefore, may be our views of the weight of the testimony in this case, under the authorities, it was for the jury to say whether Homer possessed the authority to bind the plaintiff for these extra repairs, and secondly, if possessing that authority, he did in fact make the agreement with Murphy. The power of attorney does not in terms give this authority, so it must depend upon the verbal direction ancillary to the written warrant. On the preceding trial Homer testified to this verbal permission in enlargement of the power of attorney, and that was the point upon which the reversal was based. Upon this trial, while Homer was a witness for the defendant, and under the examination in chief of its counsel, he denied there was any such direction. That covered the precise point upon which the new trial was ordered, and thus the case now comes up with a question of fact in it, and clearly distinguishable from its aspect on the prior appeal.
The tender of the $100 was a question of fact, and so determined by this court when the case was disposed of before. In any event, Murphy declined to surrender the boat unless his entire bill was paid, and there was no necessity of an actual offering of the money to him when he foreclosed its object by saying in effect it would not be accepted in extinguishment of the lien under which he was holding the boat. The plaintiff was ready to pay the $100 either to the defendant or to Murphy, and offered to do so, but the one declined to receive it on the groúnd that Murphy was the custodian of the plaintiff’s boat, and the other that the tender was insufficient.
The plaintiff’s exceptions should be sustained and a new trial ordered, with costs of this motion to plaintiff to abide the event.
All concurred, except McLennan, J., who dissented in an opinion.