I agree with the majority that this case is governed by Wagman v. American Fid. & Cas. Co. (304 N. Y. 490, 494) where the court interpreted the meaning of the words “ loading and unloading ”, a proviso in a liability insurance policy, to “ cover the entire operation of making commercial pickups and deliveries in the business of the insured carrier ”.
The policy provides: “ II. Definition of Insured. The unqualified word 'insured ’ includes the named insured and also includes * * * any person or organization legally responsible for the use thereof * * * 3. Definitions: (f) Purposes of Uses. Use of an automobile includes the loading and unloading thereof.”
Here, the question to be determined is the application of the Wagman doctrine to the stipulated facts in this case. In deciding who is an “ insured ” under this policy, it is necessary to factually determine when the goods handled have been delivered or unloaded.
It is obvious that the “ entire operation ” depends upon the nature of the goods being delivered and the “ business ” of that carrier. In other words, goods may be delivered at a particular point in one situation, but given the same goods, the point of delivery may be at another point in a different situation, for delivery is a fact and not a rule of law.
This action is concerned with the contracts of subcontractors and where legal responsibility can be readily perceived and separated. The stipulated statement of facts agrees that the defendant-appellant subcontracted “ to supply the concrete to *129the job ’ It was further agreed that the plaintiff-respondent subcontracted “ to provide a certain Erie crane and its operator and oiler, which crane was to be utilized for transporting the cement from the point where it was unloaded into the crane bucket by Saunders’ ready mix trucks to a point on the second ' floor of the building addition where it was unloaded from the bucket and utilized in the construction of said addition ’ ’. (Emphasis supplied.) It is readily perceivable, under the stipulation, that the “unloading” was twofold, (1) by the appellant and (2) by the respondent. If the “ complete operation theory ” is to be applied to such a contractual relationship, then liability under the hauler’s policy could extend through several subcontractors 1 ‘ unloading ’ ’ until the product is finally used.
In this case it is apparent that delivery or unloading was meant to be the bucket of the crane, from which it could then be used at any point upon the building. To hold that delivery is at the point of use in these circumstances overlooks the physical limitation imposed by the nature of the goods and the business of the carrier. Modern methods of conveyance, such as a ready-mix concrete truck, substantially alter prior methods of doing business, and the fact that the subcontractor did not provide a bucket large enough to permit the complete unloading of the cement in one scoop should not be the determining factor for extending liability under the hauler’s policy.
The strained construction of the provisions of the insurance policy, as applied here, is neither reasonable nor practical and, considering the stipulated facts, unrealistic.
In McGrail v. Equitable Life Assur. Soc. (292 N. Y. 419) the court said at page 424: “ Rules for the construction of contracts of insurance do not differ from those to be applied to the construction of other contracts.”
The majority memorandum cites Lamberti v. Anaco Equip. Corp. (16 A D 2d 121) and refers to the dissenting opinion therein, and with which I am in general agreement.
I would reverse the order and dismiss the complaint on the ground that, in accordance with the stipulated facts, plaintiffs Carpenter Hauling and Rigging Co., Inc., and Philip Scott aré not insured under the policy of insurance issued by the defendant Globe Indemnity Company.
Bebgan, P. J., Gibson and Reynolds, JJ., concur with Coon, J.; Heblihy, J., dissents in an opinion.
Judgment affirmed, with costs to respondents.