The president of the defendant corporation, knowing that the cargo had been on fire, without taking any steps to ascertain if the fire had been extinguished, voluntarily signed the charter party without reservation or exception, which, if he desired, he could have inserted in the contract. One who makes a positive agreement to do a lawful act is not absolved from liability for a failure to fulfill his covenant by a subsequent impossibility of per*215formance caused by an act of God or an unavoidable accident. (Buffalo & L. Land Co. v. Bellevue L. & I. Co., 165 N. Y. 247; Marsh v. Johnston, 125 App. Div. 597; affd., 196 N. Y. 511; Berg v. Erickson, 234 Fed. 817, at p. 820.)
Judgment reversed, with thirty dollars costs, and judgment ordered for plaintiff, the amount of plaintiff’s damages to be assessed by the court or referee.
Lydon and Frankenthaler, JJ., concur; Levy, J., dissents, with memorandum.