¶1. The respondent in this case, as a preliminary objection to hearing the appeal, asks to have the same dismissed, on the ground that the notice of appeal is defective.
¶2We do not examine such objections on the hearing of the appeal. If the notice of appeal was irregular, the remedy was by a motion to dismiss the appeal on notice to the appellant, so that he might be heard in opposition thereto. (2 Sandf. Rep. 227.
¶3*534All the cases referred to by the respondent, were upon such a motion.
¶4The facts in this case are all admitted, so as to rest the decision of it merely upon the law applicable thereto.
¶5It is a matter of no moment, so far as performance of the contract is involved, whether going to Piermont was or was not a deviation from the voyage. The goods were delivered at New York in good order, and accepted by the defendant. He can claim no damage on that ground.
¶6The only question on the merits is, whether the defendant was entitled to a credit of the sum paid by him for insurance.
¶7There can be no doubt, that the plaintiffs, having delivered the goods at the port of delivery, and the same having been received by the defendant without objection, had earned the freight agreed upon.
¶8It is admitted, that the vessel was at New York on the day the insurance was made, but that the defendant had no knowlege thereof. If the goods had arrived, there was no risk incurred by the insurer, and consequently the premium was unnecessarily paid, and might be recovered back from the insurer. From the character of the admission, we understand such to have been the case. If so, the insurance was improperly allowed. I think, also, the usage was properly admitted. In such contracts, general usage is admissible to explain the extent of the liability of the parties.
¶9By the admission, it appears to be a general custom for vessels from Boston, to take a deck load for Piermont, and discharge there before delivering the cargo at New York. If so, then the defendant had no right to complain that such usage was followed in this case. For either reason above stated, the insurance paid by the defendant was improperly allowed. If the vessel had arrived when the insurance was effected, or if the usage allowed of landing first at Piermont, then there was no ground upon which the plaintiff could be charged with the insurance, as claimed by the defendant; and an examination of the other points suggested in the argument, is not necessary to the decision of this case.
¶10*535I think the judgment should be for the amount of freight; and as the facts are all admitted, we can order such judgment to be rendered on this appeal.