34 Misc. 2d 337 | N.Y. Sup. Ct. | 1962
Defendant moves for summary judgment dismissing the complaint. The action is based upon a Marine
Plaintiffs contend that the goods were removed and separated from the manufacturing area of the building and placed in the shipping area where they were turned over to the control of the trucker which, for its own convenience, left the goods in the shipping area for a period of time until the damage occurred. Thus, the plaintiffs contend that while the goods did not leave the warehouse, they were in the normal course of transit since the truckman had already accepted the goods for shipment. There was no physical separation of the goods from the warehouse where goods are usually kept before they are put in the course of transportation, and while the goods may have been checked out to the trucker, they were not cheeked out of plaintiff’s building.
The loading of trucks within the building does not constitute ‘1 in transit ’ ’ until there is a movement out of the building. Plaintiff relies on Federman Co. v. American Ins. Co., 267 N. Y. 380). There the goods had arrived at their destination and were unloaded and placed upon another vehicle. The court stated (pp. 383-384): “ With these arrangements and this disposition of the goods, the consignor had nothing to do. The function of the last carrier engaged by the consignor was fulfilled. * * * To sustain the decision of the Appellate Division, we must be prepared to hold that plaintiff could itself extend indefinitely the duration of defendant’s policy risk after the