104 N.Y.S. 434 | N.Y. App. Div. | 1907
Lead Opinion
The plaintiff sues, upon a policy of fire insurance purporting to insure him against the loss of profits upon property held by .him under lease.
The plaintiff leased from Max Raymond and Aaron I. Raisman three adjoining apartment houses in the city of New York for a term of four years and seven months. The houses were so constructed that they comprised thirtyffour suites of apartments, besides several shops; On July 28, 1904, the defendant issued -to plaintiff its policy of insurance against fire* such policy being in what is known as the standard' form, with the particular subject of the insurance described in a typewritten slip attached to "the printed form. The policy undertook. to insure plaintiff “ against all direct loss or- damage by fire, except as hereinafter provided, to an' amount not exceeding” $15,000. - The typewritten slip describing the subject of the insurance read as follows:
“ On the profits of his lease of the brick and stone buildings situate Nos. 100,102 and 104 West Sixty-first street, borough of Manhattan, New-York city, said lease having four years and seven months' to run from August 1st, 1904. It is understood and agreed that if
On December 'll, 1904, a fire occurred which rendered ten out of thirty-four apartments uninhabitable for a time, and for the loss , of profits resulting therefrom the plaintiff sues. At the close of the plaintiff’s case the defendant moved, for a dismissal upon the ground that the complaint did not state a causé of action, and upon the further ground that the plaintiff had not proved a cause of action. ' The court granted the motion generally without specifying upon which ground it acted. The defendant- strenuously argues that the policy is a valued one, and insures only against a total loss of profits, and that no liability attaches for a merely partial loss, such as the plaintiff suffered. With- this contention we are unable to agree.. The general rule to be observed in the construction of an insurance policy is that, if possible, effect should be given to. every word and expression contained therein, and if the policy be susceptible of two readings, or is so.ambiguously expressed that, reasonable and intelligent men on. reading it might honestly , differ as to its meaning, -that reading must be adopted which is most favorable to the insured. (Kratzenstein v. Western Assurance Co., 116 N. Y. 54.) The first clause in the typewritten description of the subject-matter of the insurance, if read by itself, -is certainly 'broad enough to cover any loss of profits, whether total or partial. It recites that -the insurance is “ on the profits of his lease ” which is very clearly sufficient to cover any loss of profits. The subse"quent clauses in the description apply only to cases of a total loss, and as to such total loss the policy is unquestionably a valued one.
It follows that the complaint should not have been dismissed, and .- the judgment, appealed from must be reversed and a new trial granted, with costs to- appellant to abide the event. .
Patterson, P. J., Houghton and Lambert, JJ., concurred:; McLaughlin, J., dissented. ■
Dissenting Opinion
(dissenting) :■
I am unable to concur in the prevailing opinion. The subject-matter of the insurance was the profits which the plaintiff expected to realize under-his lease, not exceeding $15,000. These profits . were valued at $416.66 per month — an arbitrary sum fixed by the contract.. In case the buildings were totally destroyed by fire the whole amount of the-, policy became payable,! less, a deduction of • $416.66 per month for the time the policy had been running, -and in cáse'they were rendered untenantable, without total.destruction, the same amount (not exceeding $15,00©) was to be paid- for each month Until they 'could, with due diligence, be. repaired. This was-not merely an agreement valuing the profits in the two contingencies' specified, but. it was a limitation of thp profits insured, be they more or less, and fixing á precise and definite way by which the
This view is also strengthened when we take into consideration the result which would be accomplished if the policy be construed, as indicated in the prevailing opinion, so as to cover a partial loss. ' Assume that part of the premises only were rendered untenantable and that the plaintiff, if. the fire had not occurred, would not have made any profits. In that event he could recover nothing. But assume he could show a profit of $15,000 a month on the damaged portion, he would then be entitled to recover that amount, although if the fire had destroyed all the buildings he could recover only $416.66 a month'. I cannot believe the parties intended to make such a contract, and I do not believe they have. In addition to this the' lease to which the policy refers provides that the rent, in case of a partial destruction of the buildings by fire, is to be proportionately reduced. Plaintiff, therefore, was protected by his policy in case of a total" destruction of the buildings or their being rendered untenantable, and he also had some protection under his lease in case of a partial destruction.
But if it be assumed that the policy does cover the case of a partial loss, I am nevertheless of the opinion that the complaint was properly dismissed, for the reason that the plaintiff failed to prove a cause of action. To entitle him to recover he was bound to show a loss of profits under his lease, that is, the profits which he would have made on the rooms which were rendered untenantable intermediate the fire and their being restored to a tenantable condition. This -he wholly failed to do. He testified as to what his profits had been for theffour months preceding the-fire, and also as'
Upon the ground, therefore, that the policy does, .not cover a partial loss, as well as upon the ground that plaintiff failed to prove any loss of profits, I vote for an affirmance-of the judgment.
Judgment reversed, new -trial ordered, costs to appellant to abide event.' '•