Opinion
June 22, 1976
Judgment in plaintiff's favor entered in the office of the clerk of the Supreme Court, New York County, on September 5, 1975, unanimously affirmed, with $60 costs and disbursements to respondent. Issues of credibility in the conflicting testimony between plaintiff's general manager and the truckman delivering parts for a roller coaster to the amusement park, as to whether plaintiff accepted delivery of the two cases in plaintiff's parking lot were properly given to the jury. In addition, the court correctly submitted to the jury the question whether said goods were "in transit" or had been delivered when the loss through fire occurred, inasmuch as the insurance policy which covered the freight provided that "insurance attaches from the time the goods leave * * * the insurance continues whilst the goods are in transit * * * until delivered to the final * * * destination named in the policy". Implicit in the submission was the question whether plaintiff exercised dominion over the goods so that it might be said delivery had occurred. The trial court was correct in refusing to hold as a matter of law that delivery was completed when the truckman left the freight on a trailer in the parking lot, in light of evidence showing that on six previous occasions similar freight had been delivered an additional distance, to the amusement area where a roller coaster for which the parts were intended was being erected. (See Loveless Mfg. Co. v Roadway Exp., 104 F. Supp. 809, 812; Pulitzer Creations v Phoenix Ins. Co., 47 Misc.2d 801, affd 52 Misc.2d 934.)
Concur — Kupferman, J.P., Murphy, Lupiano, Birns and Lane, JJ.