45 A.D.2d 999 | N.Y. App. Div. | 1974
In two consolidated actions by plaintiffs to recover for fire damages, defendant New York Central Mutual Fire Insurance Company in Action No. 1 appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County, entered October 16, 1973 as is in favor of plaintiffs against it in the sum of $11,105.64; and plaintiffs cross-appeal from so much of said judgment as dismissed their complaint against defendant Long Island Home Movers, Inc., in Action No. 1 and defendant Preller in Action No. 2. (The judgment appealed from does not contain any decretal provision dismissing plaintiffs’ complaint against defendant Preller. On court’s own motion, the judgment is amended so as to include such decretal provision.) Judgment modified, on the law, by striking the first decretal paragraph thereof, and by substituting therefor a provision granting defendant New York Central Mutual Fire Insurance Company judgment against plaintiffs, and dismissing plaintiffs’ complaint against it. As so modified, judgment affirmed, without costs. Plaintiffs instituted this action against the defendant insurer based on fire insurance policy issued by the latter. Plaintiffs alleged that the premises in question were covered at the time of the fire and that defendant insurer failed to pay the amount of the loss, after due and timely demand. The poEey itself gives the following description and location of the premises: “ S/S Richfield Avenue and E/of Morgon Street a/k/a Richfield Avenue, Hieksville, Nassau, New York”. It is conceded that S/S stands for “south side”. The poEey further provides that the insured was protected against “ all direct loss by fire * * 6 to the property * * " while located or contained as described in this policy 0 * but not elsewhere ”. Based on these provisions the defendant insurer interposed an affirmative defense against plaintiffs’ complaint aUeging that plaintiffs had moved the building without its insurer’s consent and knowledge to a temporary location on the opposite side of the highway where the fire occurred; that this action by plaintiffs constituted a breach of warranty under the policy of insurance and that there was therefore no Eability incurred by the insurer under the poEey of insurance. At the trial, plaintiffs’ own proof indicated that at the time of the fire the building was at a temporary location on the north side of Richfield Avenue, having been moved there from