113 N.Y.S. 476 | N.Y. App. Term. | 1908
This is an action brought upon a policy of burglary insurance in the sum.of $500, issued to plaintiff by defendant for loss by burglary, theft, or larceny of money or property from the safe in plaintiff’s premises. The plaintiff’s claim is based upon an alleged burglary on the night of April 25, 1908, in which the sum of $83.28 was abstracted from the safe. At the close of plaintiff’s case, defendant moved to dismiss the complaint upon the ground that no cause of action had been shown, for the reason that the evidence did not bring the case within the provisions of the policy, which were that the defendant should not be liable unless it was shown that an entrance into the safe had been effected by the use of tools and explosives directly thereupon and upon the outside thereof, which motion was denied and exception taken. This motion was renewed at the end of the defendant’s case, and it was also moved upon the further ground that burglary did not come within the terms of the policy, in that there were no marks caused by the force and violence used in making an entrance into the premises, which motion was denied and exception taken.
The policy provided in an attachment thereto as follows:
“Safe or Vault Attachment (Money in Office). A. For direct loss of the property mentioned in said schedule, occasioned by its felonious abstraction from the safe or safes, vault or vaults described in section 14 of said Schedule, by any person or persons who have made forcible or violent entrance into said safe or safes, vault or vaults, by the use of tools or explosives directly thereupon and on the outside thereof.”
The policy further provided that the defendant should not be liable for loss by burglary if there were “no visible marks caused by. the force and violence used in making an entrance or exit.”
The facts are substantially as follows: The plaintiff was in the business of manufacturing shirt waists at Nos. 18 and 20 West Twen
But there were no visible marks caused by the force and violence used in making an entrance or exit, as required by the policy; while the evidence tending in any degree to show the “use of tools or explosives directly upon the safe and on the outside thereof,” as provided in the policy, is extremely meager, to say the least, since the plaintiff cannot say whether or not the scratches on the safe are traceable to the use of tools or explosives upon the safe. On the contrary, -it would seem reasonable to infer from the evidence that the burglar had found a memorandum of the combination lock, which seems to have been pasted on the front of plaintiff’s desk and accessible to one looking for such memorandum.
The judgment is against the weight of evidence and a new trial should be allowed.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.