33 N.Y.S. 966 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment in favor of the defendant entered upon a nonsuit at circuit. The Cowles Engineering Company entered into an agreement with the plaintiff for the construction of a steamboat to be delivered at Brooklyn. The boat was launched unfinished. There were in the yard of the Cowles Company two boilers, a steering wheel, and some lumber intended to complete the construction of the steamboat, but not yet placed in her. The defendants were creditors of the Cowles Company, and obtained attachments against that company. The sheriff levied •on the articles named. The plaintiff brought this action to recover the property, and the attaching creditors were substituted as defendants in place of the sheriff. The plaintiff took no exception to the ruling of the court dismissing the complaint, and no motion was made for a new trial. We are hence without power to review the decision below in this respect. We may say, however, that we see nothing in the contract for the construction of this steamer to take the case out of the rule decided in Andrews v. Durant, 11 N. Y. 35, that title does not vest in an article to be manufactured until finished and delivered, or ready for delivery, and approved by the party for whom it is to be constructed. Nor can the law of Pennsylvania apply to this case, as the contract was to be performed in this state. Dyke v. Railway Co., 45 N. Y. 113; Curtis v. Railroad Co., 74 N. Y. 116.
The only point properly raised by exception is as to the exclusion of evidence to show an oral agreement between the parties prior to or at the time of the execution of the written agreement, by which title to the property was, from the inception of the work, to vest in the plaintiff. We think this evidence properly excluded. If admitted, it would have altered and modified the effect of the written agreement. By the written agreement, under the law as we have construed it, the destruction of the vessel by fire or accident would not have relieved the construction company from its obligation to perform the contract; the loss would have fallen upon it. Under the oral agreement that the title should be in the plaintiff the destruction of the boat without fault on the part of the builder would relieve it from such obligation, and the loss fall on the plaintiff. The evidence was therefore incompetent. Englehorn v. Reitlinger, 122 N. Y. 76, 25 N. E. 297; Case v. Bridge Co., 134 N. Y. 78, 31 N. E. 254. There is this further criticism to be made on the evidence excluded: it is doubtful whether the offer to prove went beyond the question of the title of the vessel itself. The articles in suit had not become any part of the vessel. The judgment appealed from should be affirmed, with costs.
