Appeal (1) from an order of the Supreme Court at Special Term, entered June 14, 1965 in New York County, which granted a motion by plaintiff for summary judgment and directing an assessment of damages, and (2) from the judgment thereon.
Memorandum by the Court.Order granting plaintiff’s motion for summary judgment, and judgment entered thereon after an assessment of damages, affirmed, with $50 costs to plaintiff-respondent. The essential facts involved in this lawsuit are adequately stated in the dissenting opinion of Justice Steuer. This court is divided on only one aspect of plaintiff’s motion for summary judgment. It is defendants’ contention that plaintiff failed to establish that oil delivered by plaintiff for storage at Bayonne was ever delivered to the tank storage operated by Field which issued the warehouse receipts. Defendants conjecture, without adducing any proof, that the oil delivered by plaintiff was somehow diverted by Allied so that it never reached the storage tanks of Field or entered the interconnecting pipelines with those tanks. That surmise is repeated in hypothetical form in the dissenting opinion, but, as that opinion recognizes, there is no proof on that question. However, the documentary evidence submitted by plaintiff establishes that the oil content of each of the 200 tank ears was actually emptied into the connecting pipelines of Allied’s tank storage facilities. In the face of this evidence, it was incumbent on defendants to present more than just speculation based on baffling aspects of the fraud perpetrated by Allied. In our opinion, plaintiff proved that its oil entered the pipelines of the Bayonne facilities and from that moment forward the oil was “ at risk ” under the policy issued by defendant insurers. If the interconnecting maze of pipeline facilitated the diversion of the oil, that fact does not permit any inference that the diversion occurred before the oil was *956placed into the interconnecting pipelines. We, therefore, agree with Special Term that no triable issue was raised on that score. There is one matter in regard to the assessment of damages that merits mention. Appellants contend that on the assessment trial they were improperly refused an opportunity to establish that the contracts for the sale of the oil entered into between plaintiff and Allied contained provisions for the payment of margin, and that plaintiff had in fact received margin payments from Allied. It is appellants’ contention that it was error to refuse to deduct from plaintiff’s award the amount of the margin payments. The record establishes that plaintiff retained title to the entire oil delivered for the value of which it sues in this action. Under the insurance contract, plaintiff was entitled to the spot market value of that property on the day the loss became known to it. Under the terms of the contracts with Allied, the margin payments could be used by the plaintiff “to hold 'him free from loss due to any default of contract by buyer, including nonpayment of storage and handling charges to American Express ”. The margin payments therefore have no bearing on the loss for which plaintiff sues under the insurance policy. There would be a different question if payments had been made by virtue of which title to some of the oil passed to Allied. But the record does not show any such payments. On the contrary, there is no proof in this record that title to any of the oil passed to Allied. Consequently, it was properly ruled that the margin payments could not be set off against any claim made under the insurance policy.