The opinion
Spencer, J.
delivered the opinion of the court. 1 continue to be of the same opinion I gave on the trial of this cause, that the policy never attached. Since the decision of the case of Graves and Scriba v. The Marine Insurance Company, I should have supposed the point at rest in this court. It cannot be necessary to reiterate an opinion on facts so precisely similar. This policy declares the adventure to be “ upon goods and merchandizes from and imnie *309 diately following the lading thereof on board the said vessel at Nevitas.” Now no goods were so laden, but the cargo had been on board from the time of the vessel’s sailing from New-York. According to the grammatical construction, and the understanding of the parties, to be deduced from the use of expressions perfectly well settled by decisions, and explicit in themselves, the subject-matter of the insurance was goods to be taken on board . or laden at Nevitas.
To bring this case within that of Vredenbergh v. Gracie, an affidavit has been produced, made by the assignees of the policy, that the defendants underwrote another policy on the cargo of the same vessel, from New-York to Nevitas, and prior in date to the policy now in question, with the fuE knowledge, on the part of the defendants, that permission could not be obtained at Nevitas, to discharge the outward cargo there, and that this policy was intended to cover and insure the outward cargo laden at New-York.
I do not feel myself called upon to say, whether these facts would, or would not bring the case within that of Vredenbergh v. Gracie, there having been no good reasons offered, for not introducing the evidence at the trial. There can be no pretence of surprise on the party or counsel, and there was gross laches in not producing the proof, if it existed.
The court are, therefore, of opinion, that the plaintiff can take nothing by his motion.
Thompson, J. not having heard the argument in the ■cause, gave no opinion.
Rule refused.