Kohlmann v. Selvage

| N.Y. App. Div. | Jul 1, 1898

O’Brien, J.:

There is no serious dispute of fact, it being admitted that the fire ' was caused by the explosion of a gasoline^ lamp which was being' used by Schomaker, the dealer in garden truck, who rented from the plaintiffs the platform in the rear-of the building. The serious question arises as to the construction of the terms of the policy, the plaintiffs contending that the sole subject of the insurance was the “ stock of wood and willow ware,” etc., which was within the build-. ing and not the building itself; and that the placing of a gasoline lamp upon the exterior wall of the building within which the. stock was contained was not within the prohibitory clause.of the policy, 'while the respondent is equally strenuous in claiming that the use of ■ a gasoline lamp in the manner described, causing the fire .as it subsequently did, was prohibited by the policy.. . It. will, therefore, be seen that the question presented as to the true construction of the terms of the policy is narrowed down to a determination of what was meant by the statement that the insurance covered “the stock.of wood and willow' ware,” etc., “contained in the brick' building.” If this was the only one of 'the terms of the policy to be construed, there would be force in the contention that, as the. premises were not insured by the defendant, but" only the goods ' within the building, tlie purpose of the policy was merely to cover and' deal with the stock within, the building. The force, however,, of this construction is destroyed when we consider the two clauses " of the policy already quoted in reference to lighting, the first grant- • ing a privilege of using electric lights and the other forbidding gasoline for lighting purposes. There is. no doubt that in both these clauses reference is made not only to the interior but to the entire building so far as rised and controlled by the plaintiffs; and it is apparent that the use of the Word “premises” in the privilege' clause is equivalent to the. word “ building ” in the- prohibitory clause. In. the latter clause the policy provides,; “ if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use' therein; or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above-described premises,” among others enumerated, “ gasoline,” the policy shall be void. The plaintiffs, thus having control of the premises, which included the building,' were placed under the obligation of seeing that no gasoline was used in violation of the terms of . the policy. Tet they leased the platform at the rear of the building to a man who, for some time prior to the fire, used a gasoline lamp, resulting in the very consequence which the underwriter had stipulated against. The fact that-the plaintiffs claim not to .have known that the gasoline lamp was used is no defense, their ignorance being no excuse for failing to perform the obligation they assumed of seeing to it that no gasoline was used on the premises. .

We think that the disposition made by the trial judge was right, and the judgment appealed from should be affirmed, with costs. .

Vañ Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.