134 Misc. 386 | City of New York Municipal Court | 1928
Motion to set aside verdict. The action is on a policy of insurance issued by the defendant insuring Treuhaft Express from November 13, 1925, to November 13,1926, on account of the assured’s liability for loss or damage of lawful goods and merchandise, the property of others, from certain enumerated causes while being transported by the assured. By rider attached to the policy the insurance was extended so as to cover risks of theft and pilferage, provided there be visible evidence of forcible entry. On June 3, 1926, certain merchandise, the property of others, was stolen while being transported by the assured, and there were visible evidences of forcible entry. Due notification and proofs of loss were served on the defendants and the assured complied with all the provisions of the policy. Treuhaft Express was the trade name under which Joseph Treuhaft was doing business. The defendant had not paid the claim represented by the aforesaid proofs of loss. On October 15, 1926, a firm of Fox & Pollock recovered a judgment against Treuhaft for $1,897.70. This judgment arose out of claims having nothing to do with the property stolen on June 3, 1926. Execution on said judgment was issued and returned unsatisfied, proceedings supplementary to execution thereafter instituted and plaintiff appointed receiver. As such receiver he has commenced this action to recover the value of the merchandise so stolen while being transported by the assured. The evidence established a theft under the policy coverage. No claim, however, has been made against the assured by the owners of the stolen merchandise, nor has he paid to them or to any other person any sum to compensate for the loss. No actual loss or damage, therefore, has been suffered by him. The question for consideration is whether or not under these circumstances there exists a liability of the insurer within" the meaning of such words as used in the policy. Policies of this type vary in form. Some indemnify against loss or damage sustained by the insured. Others insure against liability for loss or damage. The latter may insure against liability imposed by law only or against liability without providing for the mode or test of proof thereof. Where the contract is one