(concurring):
I concur in the result but reach that determination by a different route from that of the majority, which I find difficult to accept.
Had the transportation of the gold from its safe depository in the bank at Spearfish to the motel in Sheridan been made at the request of a trustworthy and reliable customer in the course of a bona fide transaction, for the purpose of facilitating the inspection, weighing and assaying of the gold by the customer with a view to his purchasing it, I do not think that a theft of the gold, by a third person, while it was at the motel would have afforded a proper ground for the recovery by the insured under the terms of the policy in question.
The majority opinion treats the policy as if it provided broad “in transit” coverage, while its express terms refute such intention by providing coverage only “while in due course of transit until delivered into factory, store, premises, or warehouse at destination . . .” (emphasis added). It is not for this court to enlarge the parties’ own definition of the cut-off point for coverage as the time the insured goods were “delivered . . . into . . . the premises ... at destination.”
New York law applies; and the majority cites no decision dealing with a policy containing such a qualification of “in transit”, but instead relies on cases with policies of far greater scope. See, e. g., Ben Pulitzer Creations, Inc. v. Phoenix Ins. Co., 47 Misc.2d 801, 263 N. Y.S.2d 373 (Civ.Ct.N.Y.1965) (insured “while in due course of transit between the premises of the Insured and the premises of his contractors and while on the premises of contractors”). The majority also cites the latest New York decision on the subject, Franklin v. Washington General Insurance Corp., 62 Misc.2d 965, 310 N.Y.S.2d 648 (Sup.Ct.1970), aff’d without opinion, 36 A.D.2d 688, 319 N.Y.S.2d 383 (1st Dept. 1971), and describe it as a case which held, “transport for purpose of exhibition covered by due-course-of-transit clause.” This unfortunately implies that a theft of the rare documents was effected after arrival at the place of the exhibit, which was in California, and while they were on exhibition. Actually the documents were stolen in New York from the insured’s automobile where he had temporarily left them preparatory to driving to Kennedy Airport to board a plane with the documents to take them to California.
The majority also quote this case as authority for the perfectly sound proposition that “a temporary interruption for a purpose related to the carriage itself does not remove the property from transportation.” It then asserts that the inspection, weighing and assaying of the gold after its arrival at the motel and the sale negotiations were “a purpose related to the carriage itself.” I cannot agree that there is anything in New York law or the facts of the cases which, assuming a normal, legitimate business transaction, supports any such innovation. See, Federman Co., Inc. v. American Insurance Co., 267 N.Y. 380, 196 N.E. 297 (Crt. of App. 1935), motion for reargument denied, 268 N.Y. 609, 198 N.E. 428 (1935), which concerned a much broader policy than that under consideration. If the insured, Keystone, for such legitimate business transactions had sought “off premises” coverage with protection against theft by third persons regardless of whether its goods were in transit or not, it could have obtained a policy with that provision in it.
The New York Court of Appeals, however, has recognized an exception to the general rule for “in transit” cases that “transit” ceases when the goods have *460been delivered to the customer-consignee or his agent or have been delivered, as claimed by the insurer in the present case, “into premises at destination,” and that exception is, where such delivery or diversion from transit is brought about by falsification, misrepresentation or like factor in the course of the perpetration of a theft, robbery or other criminal scheme. See Underwood v. Globe Indemnity Co., 245 N.Y. 111, 156 N.E. 632 (Crt. of App. 1927).
The present case does not relate to an ordinary, legitimate, business transaction where, for the purpose of construing particular provisions of the policy, consideration may be given to the “objectively reasonable expectations of business men” in the context of the transportation of goods looking toward a lawful sale and delivery to a customer and, failing that, a return of the goods to their regular repository. From the time the con-man and thief, Jack Stod-der, induced Keystone to take the gold out of the bank and transport it to the Sheridan Motel, to the time Oltmans and Zapf, at the point of Stodder's pistol, turned the gold over to him, the case was one of theft and robbery. Although the insured, in transporting the gold to Sheridan thought it was carrying out a legitimate plan of its own, it actually was carrying out the felonious plan of the thief. Keystone transported the gold to Sheridan at Stodder’s bidding. They were dancing to his tune. The transfer was part and parcel of his larcenous scheme, and, once the gold was in the motel, in the hands of the gullible and defenseless officers of Keystone, the theft was more than half accomplished. The stop-over at the motel was directly related to the carriage, both of - which were designed to facilitate the theft.
It is apparent that Stodder’s project started out as a plan for larceny by trick. When Keystone’s officers did not turn the gold over during the evening’s negotiations and showed signs of disaffection toward the proposals, Stodder decided to accomplish his purpose by armed robbery.
As the temporary retention of the gold at the motel was an essential step in the theft, there was no lawful “delivery . . . into premises ... at destination, and” therefore no cut-off of the coverage.
As Judge Crane said in the Underwood case (supra), in which bonds were stolen from an agent by false representations, “ ‘In transit’ means, in this case, while going to make a delivery to a customer. . . . ; [t]he bonds were in [the agent’s] possession when they were obtained from him by a trick and false device . . ., [t]herefore, there had never been a delivery to end the transit.” Underwood v. Globe Indemnity Co., supra, 245 N.Y. at 116, 156 N.E. at 634.
Likewise, in the present case there was never any lawful delivery to premises at a legitimate business destination, even though the Keystone officers thought it was. Instead, the temporary stop-over at the motel was designed by the thief to put the gold in a position where it could be readily taken.
In Hanson v. National Surety Co. (Crt. of App. 1931), 257 N.Y. 216 at page 220, 177 N.E. 425, at page 426, the court said:
“Even at common law ‘if a party fraudulently obtains possession of goods from the owner, with intent at the time to convert them to his own use, and the owner does not part with title, the offense is larceny.’ . The original wrongful intent may be inferred from subsequent conduct. It cannot be said that the larceny occurred after the messenger had ended the transit risk by delivery at destination, when that delivery was itself the consummation of a scheme to obtain possession with larcenous intent.”
For a discussion of the New York law see Sutro Bros. & Co. v. Indemnity Insurance Co. of North America, 386 F.2d 798, 801-803 (2 Cir. 1967).
The coverage of Keystone’s policy was not terminated and the judgment below must be reversed.