(dissenting). The policy provided:
■“ This Policy Insures:
“ (1) Against any and all the risks and perils of fire, lightning, navigation, and transportation while in the custody of any railroad, express, transfer and/or transportation company and/or of any steamship or steamboat, and/or against loss or damage by fire or lightning while in any hotel, dwelling and /or business building, or while in automobiles, except as hereinafter provided.
“ (2) Against loss by theft of an entire shipping package (excluding all pilferage) in transit as above in the custody of any common carrier dr while checked, against receipt in any hotel.”
It covered not only samples, but dresses or goods in a trunk. If it should be limited to a coverage of samples, the uncontradicted evidence established and the jury found as a fact .that samples alone were stolen. ■
The policy of insurance covered loss of such property while in possession of a common carrier. The goods were lost while in the possession of a common carrier. (Anderson v. Fidelity & Casualty Co., 228 N. Y. 475.) Although the court sought to limit evidence-upon the subject, the taxi driver informed the plaintiff she would be required to pay an additional sum for carrying these goods. On this subject the plaintiff testified as follows: “ Q. Did you have any talk with the operator of the taxicab? A. Yes, he said he would have to make a charge — Q. Just a moment, please. Were you apprised that a charge was to be made for those bags? Answer yes or no. A. Yes.”
The plaintiff then entered the automobile with the property which was stolen while in the automobile and in the custody of the driver of the taxicab.
The plaintiff upon this evidence was entitled to judgment on the policy. There should be an affirmance.
Judgment reversed, with' costs, and complaint dismissed, with costs.