216 A.D. 453 | N.Y. App. Div. | 1926
The action was to recover upon two policies of burglary insurance issued by the defendant. The first of these policies Was No. 22284 and was dated March 18, 1921, and on that date delivered to the plaintiff, which policy Was extended by indorsement thereon, No. 66428, dated March 18, 1922, also delivered to the plaintiff. By the said policy the defendant insured the plaintiff against loss or damage by burglary, not exceeding in amount the sum of $5,000, occurring between the 18th day of March, 1921, and the 18th day of July, 1922. By the said policy, a copy of which is annexed to the complaint, in consideration of the payment to the defendant of a premium of $225 and of the statements contained in the said policy made by the assured on the acceptance thereof and warranted by the assured to be true, the defendant agreed to indemnify the assured, the plaintiff herein, subject to the general and special agreements, terms and conditions stated in the policy, against loss by burglary, as follows: “ For all loss by burglary of merchandise usual to the Assured’s business, as described in Schedule hereof, and furniture and fixtures, from within the premises as hereinafter defined, occasioned by any
At the time of the issuance of the policy and to and including the 23d day of May, 1922, when the plaintiff alleges a burglary coming within the terms of the policy occurred, the plaintiff was in business at 34 Moore street in' the borough of Manhattan, city of New York, as a wholesale dealer in alcohol for non-beverage purposes. Plaintiff’s place of business consisted of a five-story building, the only entrance to which was by means of double front doors leading from the street into the building. The plaintiff was the lessee of the entire building and occupied the same solely for the purpose of carrying on his business. The plaintiff was a distributor of non-beverage alcohol in barrel lots under governmental supervision, selling the same to customers holding permits for the purchase thereof. The government required the plaintiff to keep his place of business open for business from nine o’clock in the forenoon to four o’clock in the afternoon on each business day, and he Was subject” to visitation by government agents during business hours. Among the statements contained in the policy and warranted by the assured to be true was a provision that a burglar alarm system was maintained, which would be tested and left duly connected at the close of each business day while the policy was in force, which alarm system was stated to protect with traps all inaccessible windows, and with screens all accessible windows, except stationary show windows, and all doors, transoms, skylights and other openings leading from the premises, and also protected all ceilings and floors not constructed of concrete, and all hall and partition walls inclosing the premises; also all accessible windows, except stationary show windows, and all doors, transoms, skylights and other openings leading from the premises. By a rider attached to the policy it was understood and agreed that a Holmes alarm would be maintained on the premises during the term of the policy. The evidence shows that the plaintiff complied in all respects with the requirement of the policy as to the maintenance of the Holmes burglar alarm system upon the premises covered by the policy. Plaintiff’s first cause of action set forth in his complaint was upon said policy of burglary insurance.
The second cause of action set forth in the complaint was upon a second policy of insurance issued by the defendant, being policy No. 23801, dated February 17, 1922, duly executed and delivered to the plaintiff, whereby the defendant, in. consideration of the
As before stated, the only entrance to the building wherein the plaintiff carried on his business was by the double doors leading directly from the street. These outer doors, except during business hours, were locked with a Yale lock and also by means of a padlock. In entering plaintiff’s place of business by this outer entrance, one stepped first into an entryway about six or seven feet square. Plaintiff’s office for the transaction of his business was located on the second floor, a stairway leading from- the entry Way to the office. At the left of the entryway Was a glass-panel door leading into a small shipping office, and to the right of this glass-panel door and leading into the. grade floor that was used for storage of barreled alcohol convenient for delivery to customers, were double doors of wooden slats or lattice work. These double doors swung inward and were fastened on the inside by means of a wooden bar which could only be lifted from the inside. Entrance to the grade storage room was effected by passing through the glass-panel door into the shipping office and then by another door from the shipping office into the storage room. From the inside of the storage room the bar upon the, lattice doors could be lifted and the doors opened when it was necessary to remove the barrels of alcohol therefrom. In the basement or cellar of the building plaintiff kept his main supply of barreled alcohol, the barrels being raised by means of an electric hoist from the cellar to the grade floor as required. There was no entrance to the cellar except through these lattice doors leading upon the grade floor. In his business the plaintiff employed a shipping clerk by the name of Christian, whose duty it Was to attend to the taking in and delivery of alcohol to customers, also to attend to the government records, obtain permits from the prohibition office and act generally as an all-around man. Christian opened the place for business each morning about nine o’clock, and the establishment was kept open for business each day until five o’clock in the afternoon. Plaintiff also employed a young lady as stenographer in his office.
Plaintiff, sworn as a witness in his own behalf, testified that he kept books and records showing what merchandise he had in his place of business, and that he himself took personal charge of his books; that the books Were kept by his stenographer and typewriter under the direction of the plaintiff. Plaintiff testified he was at his place of business practically all the time. He testified that on the 23d of May, 1922, he had on hand at his place of business 1,264 wine gallons and a fraction of alcohol; that on the grade floor he had fourteen barrels of alcohol containing 709 37 /100 wine gallons of alcohol; that he saw the alcohol there on the night of May twenty-second. The alcohol of which the plaintiff testified, and which he had on hand, was pure grain alcohol, known to the trade as non-beverage alcohol, the market price of which at the time was five dollars and ten cents per wine gallon. The plaintiff testified that on the morning of May 23, 1922, he came to his place of business about ten o’clock; that when he entered the building he found the outer door closed but unlocked; that he entered by merely turning the knob, and went directly upstairs to his office, where he found his employee, Mr. Christian; that the plaintiff entered his inside office, passing through the outer office where Christian was at work; that there was a glass partition between the two offices and a door leading from one to the other; that about fifteen minutes past ten the plaintiff heard footsteps coming up the stairs, and that a man approached Christian, pulling a gun, which he shoved into Christian’s stomach, and ordered him to put his hands up quick; that Christian complied, and that then two other men entered, each holding guns; and that the plaintiff was directed to open the door between the inside office and the outer office and to come out into the room where Christian was; that the men with the guns directed plaintiff to put up his hands, which he did; that the plaintiff was then directed to lie down upon the floor, and his hands and feet were tied; that Christian was also tied and bound into the chair in Which he was sitting; that one of the men who had entered the office remained on guard, while the others went below; that the plaintiff heard a smashing noise
Christian, sworn as a witness in behalf of the plaintiff, corroborated in all material details the testimony of the plaintiff. He testified that he came to plaintiff’s place of business shortly before nine o’clock in the morning of May 23, 1922; that he unlocked and entered the front door and looked in upon the storage floor through the lattice gates and saw the fourteen barrels of alcohol which he had placed upon the floor the afternoon before, all still there; that he immediately went to his office and signaled the Holmes system, and then busied himself with such duties as were necessary to be performed in connection with the business. Christian corroborated in all details the testimony given by the plaintiff as to the entry of the robbers and the succeeding events until the police arrived. The evidence showed that there was no connection between the lattice doors and the burglar alarm system, the connection being only from the outer doors of the building.
Upon proof of the facts aforesaid the plaintiff rested. The defendant then moved for a dismissal of the complaint as to both causes of action upon the ground that it affirmatively appeared that at the time of the alleged burglary or theft the plaintiff’s place was open for business on a business day; that the front door was open, and that the plaintiff and his employee were there ready to transact such business as was required. The court reserved decision upon such motion of counsel for the defendant, and
The appellant asks reversal of the judgment appealed from upon the grounds, first, that the risk insured against was burglary occurring when the assured was not open for business; second, that there Was no entry into the premises by actual force and violence within the terms of the policy; and that the court erred in denying defendant’s motion for a dismissal of the • complaint both at the end of the plaintiff’s case and after both sides had rested.
I think' the judgment must be reversed, and that the court erroneously directed a verdict in plaintiff’s favor upon the evidence. The terms of the policies sued upon Were clear, unequivocal and unambiguous. Under the policies, the plaintiff Was insured for all loss by burglary of merchandise usual to the assured’s business, occasioned by any person or persons “ who shall have made felonious entry into the premises by' actual force and violence when the premises are not open for business, of which force and violence there shall be visible marks made upon the premises at the place of such entry by tools, explosives, electricity or chemicals.” The evidence very clearly shows that the robbers did not make felonious entry into the premises at a time when the premises were not open for business, but that their entrance Was made during business hours, when both the plaintiff and his employee Christian Were at the place of business and transacting business thereat. The place was clearly open for business at the time of such entry. The evidence further shows that at the time of the felonious entry into the premises, such entry was made without force and violence, and that there were no visible marks of such force and violence made upon the premises at the place of such entry by tools, explosives, electricity or chemicals. The evidence shows that “ at
Furthermore, at the time of such entry the Holmes burglary system was disconnected, and if it could be said that the entry was made at a time when the plaintiff’s establishment was not open for business, then, in disconnecting said burglary system, the plaintiff violated the warranty of the policy that such burglary system was maintained and left connected at the close of each business day while the policies were in force. The law is well settled that in the absence of ambiguity a policy of insurance is to be construed according to the plain and ordinary meaning of its terms which the parties have employed. In Preston v. Ætna Insurance Co. (193 N. Y. 142) the Court of Appeals, per Cullen, Ch. J., held that the rule was well settled that contracts of insurance, like other contracts, are to be construed according to the senr.3 and meaning of the terms which the parties have used, and if they are clear and unambiguous, the terms are to be taken and understood in their plain, ordinary and proper sense. In the case at bar I find no ambiguity in the terms of the policies in suit. The defendant agreed to insure the plaintiff against loss by burglary where the felonious entry to plaintiff’s premises was by actual force and violence when the premises are not open for business, and of which force and violence there were visible marks made upon the premises at the place of entry by tools, explosives, electricity or chemicals. There was nothing ambiguous about such provisions. The felonious entry which resulted in the theft of the plaintiff’s property was made when the premises were open for business, and the evidence shows that there were no visible marks of force and violence upon the premises at the place of entry. The evidence precluded a recovery by the plaintiff under the policies on both grounds. (Rosenthal v. American Bonding Co., 207 N. Y. 162.)
Clarke, P. J., Finch and Martin, JJ., concur.
Judgment reversed, with costs, and complaint dismissed with costs.