| N.Y. App. Div. | Nov 3, 1969
In an action to recover upon an automobile theft insurance policy, defendant appeals from a judgment of the Supreme Court, Kings County, entered November 13, 1968 after a nonjury trial, in favor of plaintiff. Judgment reversed, on the law and the facts, with costs, and complaint dismissed. Findings below inconsistent herewith are reversed and new findings are made herewith. The proof at the trial established 'that the automobile insured under the subject policy and subsequently stolen from plaintiff was a stolen car when it was bought by plaintiff; and the trial court so found. The trial court further found that plaintiff was an innocent purchaser of that stolen car and bottomed its judgment for plaintiff on that finding. In our opinion, the latter finding was against the weight of the credible evidence; the evidence established that plaintiff was not an innocent purchaser for value; he did not have an insurable interest in the car; and the policy consequently is not enforceable (see Insurance Law, § 148). In view of this determination, we neither reach nor decide the question whether an innocent purchaser of a stolen car has an insurable interest in it. Brennan, Acting P. J., Hopkins, Benjamin, Martuscello and Kleinfeld, JJ., concur. [58 Misc. 2d 86" date_filed="1968-10-29" court="N.Y. Sup. Ct." case_name="Lindner v. Hartford Fire Insurance">58 Misc 2d 86.]