This case has been tried five times. Twice the plaintiff has had a verdict; once the complaint was dismissed; once the defendant had a verdict, and once the jury disagreed. Upon the fifth trial certain specific questions of fact were submitted to the jury and answered in favor of the plaintiff, and there was a general verdict for the plaintiff for the full amount claimed; but upon a motion made on the judge’s minutes the verdict was set aside and "a new trial granted, and the case now comes to us on an appeal from the order entered on that motion.
The action was brought to recover upon a policy of marine insuiv anee whereby the .defendant insured the plaintiff “ on account of whom it may concern ” by a valued policy upon a certain cargo *151shipped by Antonio Hoffman upon the bark L. E. Cann on a voyage at and from Tecolutla, Mexico, to New York, “ upon all kinds of lawful goods and merchandises,, laden or to be laden on board the good Bark L. E. Cann. * * * Beginning the adventure upon the said goods and merchandises, from and immediately following the loading thereof on board of the said vessel, at-afore-
said. * * * The said goods and merchandises hereby insured are valued at (including premium) $29,500.” The perils insured against are “ of the seas, * * * barratry of master and mariners, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandises, or any part thereof.” This vessel took on board a portion of the cargo at Vera Cruz, then proceeded to Tecolutla, Mexico, when she completed her cargo, and from there sailed for New York. Subsequently she sprung a leak in the Atlantic ocean and was abandoned on the 27th of April, 1882, about 180 miles from Charleston, S. C. In the following June she was discovered still afloat and was towed into Norfolk, Va. The further facts are stated in an action brought by this plaintiff against the Providence Washington Insurance Company (51 App. Div. 553) and it is not necessary to restate them here. The question of fact was submitted to the jury by the learned trial judge with a charge which seems to have been entirely satisfactory to the defendant as no exception was taken to it and the defendant submitted but one request to charge which did not relate to any question which is important upon this appeal.
The judge submitted three questions to the jury: “1. Was Antonio Hoffman a participating party to the agreement to defraud the insurance company % 2. Was there a deviation from unreasonable and unnecessary delay at Tecolutla ? 3. Was the L. E. Gann seaworthy to encounter the ordinary perils of the sea when she left Tecolutla on a voyage to New York ? ” To the first two questions the jury answered “ no,” and to the last question they answered “ yes; ” and to the general question whether they found for the i plaintiff or the defendant, the jury found in favor of the plaintiff for $7,132.99:—the court having charged the jury that if they found in answer to the first special question that Hoffman was a participating party to the agreement to defraud the insurance company, they *152must find a verdict for the defendant. To this direction counsel’ for the plaintiff excepted, saying, “ I except to your Honor’s refusal to • permit the jury to pass upon the question as to the quantity of goods which was in fact shipped and your charging the jury that they could not findyw ianboP To this the court replied : “I will give you a square exception on that. I do allow them to pass upon the quantity as a fact, but I do not allow them to give a verdict for Mr. Yoisin for the relative amount of the insurance.” Counsel for the defendant took no exception to this charge of the court, made no-request to charge that in case the jury found for the plaintiff, they could find less than the full amount of the policy, and accepted the benefit of the instruction which required that the defendant should have a verdict if Hoffman participated in the fraud. In this case a jury had once before, upon a similar question being submitted to them, found that Hoffman did participate in the fraud to which allusion will be made, and another jury had found that Hoffman did not participate in the fraud. The defendant- thus had the full benefit of an instruction by which the plaintiff was made responsible for Hoffman’s fraud if he was guilty, and that defendant was relieved from responsibility under this policy of insurance if they found that Hoffman participated in the alleged conspiracy.
After the trial, but before the decision of this motion, the case of this plaintiff against the Providence "Washington Insurance Company (supra), which related to a similar policy of insurance issued by the defendant in that action upon this same cargo, came before us and we held that if Hoffman did participate in the fraud, this plaintiff would, notwithstanding, be entitled to indemnity to the extent that, he had become the owner of the goods that were actually shipped, upon this vessel; that the policy being a valued policy, upon proof that the cargo was actually placed upon the vessel the plaintiff, was" entitled to recover unless the defendant could show that the whole cargo upon which the valuation had been placed had not actually been shipped, in which case the plaintiff would be entitled to recover only an amount equal to the proportion that the cargo which was actually shipped bore to the entire cargo that was valued -in the» policy. After this decision was announced, the learned trial judge granted this motion upon the ground that he had refused to allow the jury to pass upon the question as to whether or not the total *153cargo was shipped, and that, as in such a case the plaintiff would not be entitled to recover the whole amount claimed, he thought that a new trial should be granted. The question that presented itself to him is thus stated in his opinion (Voisin v. Commercial Mutual Ins. Co., 32 Misc. Rep. 393, 401): £< Has not then the plaintiff here the right to retain his verdict for the full amount of the policy, the jury finding that Hermanos Brothers (Hoffman) were not parties to this fraud ; and has the defendant the right to complain because the case was presented to the jury in a more favorable way than defendant was entitled to under the law, as now ascertained? Theoretically, perhaps, the plaintiff’s position is the more consistent with logical reasoning in the application of rules of law to trials in courts of justice. Logically, it seems an anomaly to overturn a verdict which has been rendered in favor of plaintiff, who had to sustain the burden of a harsher rule of law, as applied against his cause, than should have been imposed upon him. Practically, the acceptance of this rule by the jury may have operated in plaintiff’s favor * * * where it is highly probable the misconcep-
tions the jury innocently or sympathetically made prevented substantial justice, and caused a more severe verdict than would have been the case if the jury had been rightly guided by the court, in which they had the right to have the utmost confidence. As the case was submitted to the jurors, they were required to say that an innocent consignee and holder of bills of lading, who had insured the goods covered, must either recover the whole of the insurance or nothing, and could not be permitted to receive the insurance indemnity up to the extent of his pecuniary interest in the áctual cargo. Out of this view was born a great temptation to protect one who was apparently innocent in fact, even to the extent of swaying the reason and coloring the judgment with a sympathetic tinge of what might seem to those jurors as practical justice. That they would have found otherwise may be inferred- from the strength of defendant’s case upon the facts.”
There is nothing in the record of the trial which would suggest that the jury were influenced in any way by the considerations which are here adverted to and which the court had thought might possibly have influenced the jury. The question as to Hoffman’s fraud was *154the main question that was litigated. The defendant claimed upon the trial, and claims upon this appeal, that the finding that Hoffman was not guilty of the fraud was not sustained hy the evidence; but we think that upon a fair consideration of the testimony it was at least a question for the jury to say whether Hoffman participated in this fraud, and that the finding of the jury that Hoffman was not such a participant is sustained by the evidence.
The captain of this vessel testifies that he entered into a conspiracy • with one Granes, a resident of Vera Cruz, by which Granes was to charter the vessel, ship a bogus cargo to Hew York, and the vessel was to be sunk at sea and abandoned, and for this the captain (Brooks) was to be paid $6,500 ; that a cargo that was to a. large extent bogus was put on the vessel at Vera Cruz and Tecolutla and with it she sailed for Hew York. Brooks does not testify that Hoffman was connected with this conspiracy, and but for the fact that when this vessel arrived at Horfolk, Va., a considerable portion of the cargo, which it was claimed Hoffman had shipped, had disappeared, therewould.be no evidence to connect him with it; and this fact of the deficiency between the cargo that Hoffman claimed to have shipped and for which he received bills of lading and the cargo found in this vessel upon her arrival at Horfolk is, the fact that has been most relied on to show that Hoffman must have, shipped a much smaller cargo than was covered by the bills of lading upon which the valuation was based, with the intention of defrauding the insurance company when the vessel was lost. If this fact was proved and if the jury had believed that Hoffman had furnished a fraudulent cargo, taking bills of lading which showed a large excess in the amount shipped, _it is somewhat difficult to see how they could have found that Hoffman was not a party to the fraud. There is certainly nothing in the record that justified the trial judge in assuming on the motion, or that would justify us. in assuming upon this appeal, that the jury were swayed “ with a sympathetic tinge of what might seem to those jurors as practical justice ” to decide a question of fact contrary to- their convictions. The question of Hoffman’s participation in this fraud was submitted to them in a charge which certainly bore as strongly towards a finding in favor of an affirmative answer to this question as was justified by the evidence. Their attention was called to all the facts relied on to prove *155Hoffman’s fraud, and they were squarely instructed that if that was proved it was their duty to say so and find a verdict for the defendant ; and in the face of this instruction they found that Hoffman was not a party to the fraud. I can find nothing tending in the slightest degree to show that that verdict was not the result of a fair, honest and impartial consideration of the testimony, and certainly up>on my view of this testimony there was nothing to justify the court in setting aside the verdict as contrary to the weight of evidence. The jury, to have found Hoffman innocent, must have found under the charge of the court that Hoffman shipiped the goods described in these bills of lading and upon which the valuation contained in the policy was based; and it seems to me that if this finding that Hoffman was not a pmrtv to the fraud was . sustained by the evidence, the plaintiff was entitled to hold the verdict in his favor.
In determining this question we must consider for a moment upon whom rests the burden of showing that the cargo represented by the bills of lading and which was the basis of the valuation of the policy was not actually shippod. As before stated, the policy was a valued one, and it has always been the rule that the value of the goods stated in a valued policy is, in the absence of fraud, conclusive between the parties, however, largely in excess of the true value.
(Voisin v. Providence Washington Ins. Co., supra, and cases there cited, to which may be added Kane v. Commercial Ins. Co., 8 Johns. 229; Cushman v. North Western Ins. Co., 34 Maine, 487; Boardman v. Boston Marine Ins. Co., 146 Mass. 443; Dumas v. United States Ins. Co. 12 S. & R. 437.) Upon proof, therefore, that the cargo thus valued in the policy was shipjped, that value in the absence of fraud became conclusive as the value of the cargo that was lost; and if the defendant wished to obtain the advantage of 'the rule laid down in Forbes v. Aspinall (13 East, 324), which we held applicable to cases under these policies in the Providence Washington Ins. Co. Case (supra), the'burden was on the defendant to show what part, if any, of the goods which were the basis of the valuation in the policy were not shiprped. The defendant insists upon this appeal that there was no evidence to show that the goods represented by Hoffman’s shipment were actually shipped. That question was determined by the late General Term of the Supreme *156Court in the appeal from the judgment entered upon the dismissal of the complaint in this case (Voisin v. Commercial Mutual Ins. Co., 67 Hun, 365), where, after discussing the evidence of the shipment introduced by the plaintiff, the presiding justice, in his opinion, says: “ This evidence is certainly as strong as that which was presented in Palmer v. Great Western Insurance Company (116 N. Y. 599),” and it was held that the proof of the shipment, of the cargo was sufficient to sustain a finding by the jury that the cargo was actually shipped. /
The main evidence, apart from the condition of the cargo at Norfolk, that questions the shipment by Hoffman is that of Brooks, the master of the ship, who was coneededly a party to. the conspiracy. He says, speaking generally of the cargo, that he gave bills of lading which called for fifty to sixty per cent more.than had actually been placed on board. Considering the conduct of Brooks, the fact that at this time when he testified he was in the pay of the defendants, had committed a crime for which the insurance company could procure his severe punishment, that he confesses that he had committed that crime, and that he had received the price that he was to be paid for committing it, his testimony certainly cannot be considered as being of much weight unless corroborated. The main fact relied on to corroborate him is the evidence of the goods found upon this vessel when she arrived at Norfolk. The vessel was abandoned in the Atlantic ocean on the 27th of April, 1882, and remained as derelict until some time in June, when she was discovered and towed to Norfolk, Va. When she was discovered she was barely afloat, her cargo being all submerged, and a considerable portion of the deck, from twenty-five to thirty feet, extending the whole width of the vessel, was torn ■ out. All her spars and some of her deck beams were gone. What happened to her during this period of over a month is not disclosed. She was at. the mercy of the winds and waves and of passing vessels that might see fit to help themselves from her cargo. She was just afloat, one of the witnesses saying that five tons more would have sunk her. After tire vessel arrived at Norfolk she seems to have been taken possession of by representatives of the insurance companies. Two boxes were taken out by a diver. After these two boxes were taken out the vessel was towed up.to Norfolk, and there unloaded. There was. evidence of various witnesses *157who weighed portions of the cargo discharged from, the vessel. A witness named Battley testified as to certain goods that he weighed, but he does not state that he weighed all the goods that came from the vessel. He seemed to have weighed some yellow metal, rags, bones and fustic. Sparrow, an inspector of customs at Norfolk, Va., testified that, by the directions of the collector of the port, he superintended the delivery of the cargo from the L. lL. Gann from beginning to end. He produced a list which he swore was “ a correct list of the cargo as taken out by me on the various days; ” that he did not do any weighing, but that he saw all this cargo himself as it came out. A man named Mnndin was also called as a witness and testified that he was ordered to take charge of the L. JE. Gann as night watchman and relieve the witness Sparrow who was there by day, and that nothing was removed from the vessel while he was watchman. He does not state when he first took charge or how long he continued in charge. Another witness testified that he was a submarine diver, but that he took out no part of the cargo, except some bundles of broom straw. Holmes testified that he went to work on the Gann on the fifteenth of July, and he produced a list of the articles that were discharged from the ship on various days, from the fifth of July to the twentieth of July; and this list includes all the cargo that was taken from the vessel in his presence. He nowhere testified, however, that this list was all of the cargo of the vessel, and this list appears to have been a copy of the one produced by Sparrow as to the contents of the vessel. There was also introduced a certificate of one Banks, a weigher, who certified that he had weighed certain packages of zinc, scrap metal, rags and bones on board the Gann, but just how much that was of the cargo which was removed does not appear. Brown testified that he was sent to take charge of the Ga/nn by the insurance companies and found her on the Horseshoe Shoals on the first of June; that she was then in charge of the tugboats which had brought her in from sea. The vessel was then taken into the Norfolk river and grounded at quarantine, and then the discharge of the vessel was commenced. The cargo was taken out of the vessel and placed on lighters and carried to a wharf at Berkely and there stored until sold; that all the cargo was taken out of her and put into the lighters. Some few packages were taken out after she was alongside the wharf at *158Berkely.. This witness testified that all the cargo which was in the Gcmn was put on these lists produced by the two witnesses to which attention has been called; that in towing the vessel up from the Horseshoe to quarantine two bales of tobacco were washed out, but were recovered. This evidence as to the cargo that was taken from the vessel at Norfolk and- the weight of the articles, would probably be sufficient for the jury to find that all of the articles that were upon the vessel at the time she arrived at Norfolk were accounted for. I do not think it was of a character that would require such a finding. There is nothing to show what happened to this cargo during the time that the vessel was a derelict on the ocean; and as it appears that she was in such a condition that in towing her from the Horseshoe Shoals to Norfolk two bales of tobacco were washed out, it certainly was not unreasonable under the circumstances detailed for the jury to come to the conclusion that a large portion of the cargo had been lost while she was floating about, abandoned at sea, and before she arrived at Norfolk.- It is said, however, that the metal could not have been washed out; but the evidence that all of the metal laden upon this vessel was placed under the other portion of the cargo, with the metal that was in her when she arrived at Norfolk, is not entirely satisfactory. All that we have is the evidence of Tedford, the mate of the vessel, that the zinc was stowed in the lower hold next to the skin, and that the copper was stowed down in the bottom, the same as the zinc and the brass. Except this general statement, there is nothing to show that the metal was not in such a position that during the period while the vessel was a derelict a portion of it could have been washed overboard or in some way lost.
The defendant introduced letters written by Granes, who, if the captain is to be believed, was the principal conspirator and who shipped a large part of the bogus cargo upon this vessel, as declarations of a co-conspirator; and assuming that Granes and this captain united to defraud the insurance companies, the statements in these letters are.important to show what relation, if any, Hoffman had to Granes in this understanding with Brooks. On the 26th of December, 1881, Granes wrote to Messrs. Thurber & Co. of New York, who was his consignee, stating that the L. JE. Gann could be chartered, and that by chartering her he would have the advantage of being able *159to take on freight “ here from two or three merchants-, two hundred tons of bones, fustic, broomcorn, and other articles,” On a subsequent day of January he informs his correspondent in-New York that he had chartered the Oamm,, and then he states: “ As it so happens in this case that the vessel is too large for me, I find myself obliged to accept cargo on freight, having to take it at a lower rate than the current one, so as to induce those who have cargo to send it by this barque. I choose this method because I presume it will be safer for me; for the contract freight of the vessel being $6,000, it may happen that I shall obtain at least half of the capacity of the vessel, among various shippers who have offered me their cargo.” And in a letter dated January 12, 1882, Granes says: “ I have been able to persuade four firms in this city to ship 200 Or more tons, yet I have had to make a slight concession in the rate of freight to two of them below what I am paying.” On January 26,1882, he inclosed to his correspondent the bills of lading of the cargo and a copy of the freight list, “ that you may see what you have to collect in freight being $1,417.75.”
There is certainly nothing in this correspondence to indicate in any way that these shippers of freight were engaged with Granes in the conspiracy to ship goods which it was expected would be lost, or that their shipments were not made in good faith; and the assumption that Granes had put on board a bogus cargo would explain the fact that there were boxes of dirt and other refuse which were found at Norfolk without conclusively establishing that Hoffman’s shipment was not an honest one. The defendant laid great stress upon the refusal of Hoffman to show his books to Brown, the agent of the insurance companies, when he went to Mexico, but at this time the insurance companies were contesting the claim, the action having been brought in August, and this demand by Brown was in December, 1882, or January, 1883. It is not surprising, under these circumstances, that Hoffman should decline to exhibit his books of account to the agents of the insurance companies who were charging him with fraud and with being a party in such a conspiracy as is charged in this case.
We thus come back to the consideration of whether, upon all the testimony, the verdict of the jury that Hoffman was not a party to this conspiracy, and that he did ship upon this vessel the goods *160described in this bill of lading and upon which the value of this cargo as shown by the policy of insurance was based, was against . the weight of evidence. I think, taking the whole testimony together, it was at least a question for the jury as to whether Hoffman did as a fact take part in this conspiracy, and whether he had as a fact shipped the cargo upon which this valuation was based, and that the verdict of the jury was sustained by the evidence. In this state of the proof there certainly does not seem to be any justification for the assumption that the verdict was induced by any sympathetic desire to aid the plaintiff in swindling the defendant.
This being so, what basis is there for the supposition that, if the question as to whether or not all of the goods represented by these bills of lading and upon which was based the value claimed in the policy had been submitted to the jury, they would have found that all of the goods were not shipped ? I can see nothing to suggest any reason why they would have found that all of the goods were not shipped if they found that Hoffman was not a party to the fraud. As before stated, the court left the question as to whether Hoffman shipped all the goods represented by the bills of lading to the jury in considering the question as to whether or not Hoffman was engaged' in this fraudulent conspiracy; and .there is at least a fair presumption that they considered that question and determined that the goods were shipped in considering whether or not Hoffman was a participant in the fraud; but even if this conclusion cannot properly be drawn we have the fact that it was the plaintiff who wished that question left to the jury; that the court refused to submit it; that the defendant took the benefit of that refusal by having the jury directly instructed that if Hoffman was implicated in the fraud the plaintiff could not recover, taking the chance- of a finding that Hoffman was guilty of fraud, from which would result a verdict for the defendant •—• a position which had been insisted on by the defendant since the commencement of this litigation. And the defendant having made no claim that a different rule should be adopted, not asking for an instruction which would allow the jury to find a verdict for the plaintiff, although Hoffman was guilty of the fraud, is in no condition now to claim, having taken the advantage of the ruling of the court and the chances of a favorable finding upon the question as submitted, that there should be a new trial, so that *161an instruction could be given to the jury which the defendant has always vigorously opposed. It is conceded that no exception taken by the defendant presents this question. The verdict of the jury is not against the weight of evidence, and to allow a defendant in an action of this kind, with a ruling that is strongly advantageous to it, to take the benefit of that ruling, with a chance of a successful recovery, and after failing in that chance to obtain a new trial because the rule of law was announced too strongly in his favor, would certainly seem, not only as the court below stated, not “ consistent with logical reasoning in the application of rules of law to trials in courts of justice,” but would be a great injustice to the plaintiff.
There are no exceptions to the rulings upon evidence, presented by counsel for respondent as sustaining the order appealed from, that require notice; and assuming that the rule as applied upon the trial was to the advantage of the defendant, the fact that such a rule was error did not justify the court in granting a new trial.
My conclusion, therefore, is that the order appealed from should be reversed, with costs, and the motion denied, with ten dollars costs • and disbursements.
Yan Brunt, P. J., concurred.
Order affirmed, with costs to the. respondent to abide the event •of the action.