182 A.D. 748 | N.Y. App. Div. | 1918
Plaintiff is engaged in business as a warehouseman occupying premises which it owns in the borough of Brooklyn, city of New York. A part of its business is conducted under the .name of “ Independent Stores ” (the name of the former owner of the property) on property bounded by Fortieth street, Fifty-first street, Second avenue and the water front in said borough. The remainder of the business is conducted under its own name in property owned by it to the north of the “ Independent Stores.” On March 23, 1915, defendant issued its policy of fire insurance to plaintiff in the sum of $50,000 running for one year, and containing the following typewritten “ rider,” the form thereof being taken in part from the handbook of the New York Fire Insurance Exchange and in part prepared by plaintiff’s insurance brokers:
“ Bush Terminal Company “ and /or
“ Bush Terminal Railroad Company.
“ Jointly or Severally as Interest May Appear.
“ Legal Liability Form-Liability Not Disclaimed.
“ $50,000. On their legal liability in or for all merchandise and/or baggage held in their custody as common carriers, warehousemen, wharfingers, forwarders or freighters; also upon their interest in all advances or other charges due or to become due upon all merchandise and /or baggage while contained on the premises and /or tracks of the Bush Terminal Company, the Bush Terminal Railroad Company and/or the Bush Terminal Buildings Company, in the Borough of Brooklyn between Twenty-eighth Street and Sixty-fifth Street, but this policy not to cover on cars or their contents, except upon such cars and contents as are not under the protection of marine policies.”
On February 19, 1916, defendant also issued to plaintiff
“ Bush Terminal Company.
“ $25,000. On their legal liability as warehousemen and owners of Independent Stores, situate between Fortieth and Fifty-first Streets and West of Second Avenue, Borough of Brooklyn, City of New York.
“It is hereby understood and agreed that the premises upon which this policy covers in the Borough of Brooklyn, City of New York, are those of the Bush Terminal Company, Bush Terminal Railroad Company and Bush Terminal Buildings Company.
“ The liability of this Company is restricted to the legal liability of the insured, which may rest upon them in case of fire by reason of omission to notify the owners of merchandise in Independent Stores that the same has been stored therein, or through the giving of the wrong number of the store to any owner of such merchandise, or by reason of failure to promptly put merchandise in store before warehouse receipt is issued, or any other legal liability of the insured which may be incurred by error or negligence of the insured or its employees through which error or negligence the owner of merchandise stored with .them on their premises has failed to provide proper fire insurance upon said merchandise, at the time any fire may occur.”
In February, 1916, while said policies of insurance were in force, plaintiff received from G. S. Alexander & Co. 564 bags of muriate of potash and issued its receipt therefor in the following form:
“ Bush Terminal. Independent Stores. Foot of 40th to 51st Sts., Brooklyn. New York, Feb. 29, 1916. No. 149,710. New York Office, 100 Broad St.
“ Received in warehouse No. 7 for account of G. S. Alexander and Co. 564 (five hundred and sixty-four) bags said to contain Muriate Potash, Ex Bush Str. Cargo 122 B. Order and condition unknown. To be delivered according to the endorsement hereon, but only on • the surrender • and*751 cancellation of this receipt and on the payment of the charges payable thereon.
“ Bush Terminal Company, Edw. G. Parpart, Asst. Secretary. Storage six cents pr. mo. Labor eight cents. Charges from Feb. 23, 1916.”
After receiving said warehouse receipt, G. S. Alexander & Co., in reliance thereon, took out insurance to the amount of $28,000 in the Law, Union and Rock Insurance Co., Ltd., of London, representing that the potash was stored in said warehouse No. 7, as the receipt from plaintiff showed. Warehouse No. 7 was one of those conducted by plaintiff under the name “ Independent Stores ” and was located within the territory between Fortieth and Fifty-first streets and west of Second avenue. As a matter of fact, the bags of potash never were stored in warehouse No. 7, nor in the territory described, but had been stored by plaintiff in warehouse E, one of those conducted by plaintiff in its own name and located to the north of the described territory. On March 2, 1916, a fire broke out in warehouse E, causing damage to the potash, the amount of which was subsequently fixed by appraisal at the sum of $6,924. G. S. Alexander & Co. were refused payment by its insurer of the amount of their loss because the place where the goods had been stored had been misrepresented by it to the insurer. Thereupon G. S. Alexander -& Co. demanded that plaintiff pay it the amount of said loss, which had been caúsed by plaintiff’s misrepresentation of the location of the goods stored, thus leading to a similar misrepresentation to Alexander’s insurer, and plaintiff on August 1, 1916, paid to G. S. Alexander & Co. the amount of said loss, $6,924, and having demanded that defendant reimburse it for said amount so paid, defendant denied liability under its policies and the present action was brought. Upon the trial, a verdict having been directed for defendant, the exceptions were directed by the trial court to be heard in this court in the first instance.
Considering first the defendant’s policy for $25,000, it is clear that the terms of the rider would impose liability upon defendant thereunder, were it not for the limitation of the area within which responsibility was required to arise. For plaintiff had given the wrong number of the store within which the merchandise of G. S. Alexander & Co. was stored,
The remaining policy for $50,000 covers the entire scene of plaintiff’s various activities from Twenty-eighth street to Sixty-fifth street, so that warehouse E is embraced within its scope. The question is whether plaintiff’s liability to G. S. Alexander & Co. is such a legal liability in or for merchandise held in its custody as the policy covered. It is quite true that the $25,000 policy was an “ errors and omissions ” policy, limited both in scope and as to area covered, but it by no means follows that any inference is deducible therefrom that the larger policy did not also insure against errors and omissions, if they created a legal liability against the warehouseman. The terms of the “ rider ” attached to the $50,000 policy, so far as applicable hereto, bound defendant to pay to plaintiff, up to said amount, in reimbursement of the latter’s legal liability in and for all merchandise held in its custody as warehouseman. The element of a fire causing damage to property must be present in order to comply with the terms of the policy. But if a fire has occurred causing damage, for which plaintiff is legally liable as warehouseman to one having stored goods with it, it seems to me that defendant is bound under its policy, regardless of the theory or facts
Scott, Laughlin, Smith and Davis, JJ., concurred.
Exceptions sustained and judgment ordered for plaintiff as directed in opinion, with costs. Order to be settled on notice.