103 Misc. 253 | N.Y. App. Term. | 1918
The recovery here was upon a policy of burglary insurance issued to plaintiff on September 25, 1916, and which ran for one year. The plaintiff, a manufacturer of “ ladies waists,” occupied the tenth floor of a loft building. In November, 1916, he leased a part of this loft to one Hyman, a manufacturer of embroideries. On March 6, 1917, the plaintiff made an assignment for the benefit of creditors, and the assignee took immediate possession and control. Four days later, on March tenth, the alleged burglary occurred. The policy provided that as a condition of recovery thereupon there must be “ visible evidence ’ ’ of “ forcible and violent entrance upon the premises or exit therefrom,” and while the proof as to this was, perhaps, not over-convincing, it was sufficient to create a question of fact for the jury. The policy also relieved the insurer from liability “if the accounts of the assured are not so kept that the actual loss may be accurately determined therefrom.” The books were put in evidence, and, although the defendant claims that they are incomprehensible, they are not before us, the contention does not appear to be seriously urged, and we shall assume that the books are sufficient for the purpose. Another contention made by the defendant is that, because of the assignment made by him, the plaintiff had no insurable interest at the time of the alleged burglary, but we think this position is not tenable for the reason that the plain
The court charged the jury, upon the request of defendant’s counsel, that both the sub-lease and the assignment created changes of the condition and circumstances of the risk, but left it to the jury to say whether those changes or either of them increased the risk. In the view we take of the case, it is not necessary to pass upon the charge, as we think that upon the undisputed facts there should have been a direction for the defendant. But the charge shows what we believe to have been the erroneous view adopted by the learned trial justice. In our opinion the proper construction of the covenant in question is that any change that affected the risk was sufficient to relieve the insurer, whether it increased or decreased the risk. The policy did not leave to the assured, or to a court or jury, to determine whether a given change increased the risk. ' It is plain.that it would be next to impossible to say of many changes that they would have a natural tendency to increase the risk. If, for example, the assured sold groceries and then changed his business to that of selling dry goods, would that change increase the risk? Let us assume that no proof could be produced to show that such a change increased the risk; would the change of business not be, of itself, a change in the condition or circumstances of the risk? The insurer, we think, has the right to determine those questions under the • provision under discussion; indeed, the provision would seem to have been inserted in the policy for the very purpose of saving to the insurer the right to determine whether there has been
Judgment reversed, with costs, and judgment directed for the defendant, with costs.
Bijur and Finch, JJ., concur.
Judgment reversed, with costs.