Plaintiff has had a- verdict in this action upon a marine insurance policy. The vessel insured was a yacht. The policy contained this clause : “ Warranted by the Assured that the within named vessel shall be laid up and out of commission from November 1st at noon *6until May 1st.” The boat was actually laid up about October first at New Suffolk in a basin formed by a wharf and breakwater in that harbor. Plumbing was disconnected and the like, though her jib and mainsail were not taken off. The brother of the plaintiff, who had been, navigating the boat, testified that he had been told this was a perfectly safe harbor and went in there with the intention of leaving the boat for the winter. He remained in that vicinity, engaged in scalloping, and observed the last of November that the basin in which the vessel was moored was entirely unsafe and removed the vessel to go to Bay Ridge for the balance of the winter. On his way to Bay Ridge the vessel was badly burned and the insurance company declined to pay upon the ground that there was a breach of the warranty to have the vessel laid up from November first to May first, claiming that while the vessel was navigating the sound it could not be considered “ laid up.”
At the opening of the trial the learned trial court put the situation very graphically : “ If a boat were laid up in the Erie Basin and the breakwater near which she lay was broken in, and they took her across the Erie Basin to a safer place, and she was burned in passing from the unsafe to the safe place, what would be the condition of that boat during that progress ? She would be laid up still, would she not ? ”
I think, under the evidence, that is this case. The navigator testified that in good faith he laid her up at New Suffolk and did not attempt to move her until he became convinced that her berth was unsafe. His good faith was attacked by the defendant in various ways, principally that he did not take her sails off as he had done in former winters; that he remained in the vicinity engaged in scalloping, and that instead of moving her to one of a number of safe anchorages nearer than Bay Ridge, which he had to, pass in going from New Suffolk to Bay Ridge, he took her to the more distant point. All of this evidence, however, merely presented a question of fact for the jury in relation to the good faith of the navigator. Hpon sufficient evidence the jury has resolved this question in favor of the plaintiff, and I do not .feel that the verdict is against the weight of evidence. Where the question of the good faith of a party is involved, the jury and the court in denying a motion for a new trial is situated where it has peculiar means of *7passing upon the credibility of witnesses and the appearance presented by tile party whose integrity is assailed.
I advise that the judgment and order appealed from be affirmed, with costs.
Woodward, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.