Maisel v. Fire Ass'n of Philadelphia

69 N.Y.S. 181 | N.Y. App. Div. | 1901

Spring, J.

This action is founded upon a standard fire insurance policy issued by the defendant to the plaintiff March 20, 1899, and which contains this clause: “ $1,500.00 on stock of furniture of every description, including mirrors, brackets, desks, lounges, mattresses, springs, ana such other stock as usually kept for sale in a retail furniture store, while contained in tho brick building and additions attached situate No. 967 on the south side of Broadway, Buffalo,, N„ Y.”

The plaintiff was engaged in the retail furniture business, occupying a brick store fronting on Broadway in the city of Buffalo, and which was the easterly of three brick stores in the same building with street number 967. At the southeasterly corner of the plaintiff’s- store there was á two-story frame building, situated chiefly on the rear of the adjacent lot but which extended over and against the rear of plaintiff’s building two inches. The store and this frame building were owned -by the same person, and the latter was used by the plaintiff in connection with the main store for storing his furniture, and the property burned was in this building and was destroyed during the life of the policy, and the amount of the loss was stipulated on" the trial at $331.87. The frame building fronted on an alley which extended along the rear of all these stores to Fillmore avenue, a street intersecting Broadway. There was no other building attached to or connected with the store occupied by the plaintiff. The only question in the case is whether or not this frame building is fairly within the expression “and additions attached.” In Rickerson v. Hartford Fire Ins. co. (149 N. Y. 307) the description in the policy was, “ the brick building and additions, including * * * yard fixtures * * * and all fixtures contained in or attached thereto * * * situate-Mo. 160 Mott street, city of Mew York, occupied for stores and dwellings.” The property consisted in front of a brick building, another a considerable distance in the rear and a portion of the intervening space was taken up with a one-story stable which extended from one brick building to the other so that its end walls were the walls of the brick building. This was covered with boards and the only communication with the brick building was ■ by .a window through each of the walls. The court at Trial Term dismissed the complaint, which was affirmed by the General Term-and reversed by the Court of Appeals. The court, after analyzing the description, reached the conclusion that it might include all the buildings. - ■

In Cargill v. Millers' & Manufacturers' Mut. Ins. Co. (33 Minn. 90) the policy covered a “ steam-power elevator building and additions with porches and platforms attached, including engine and boiler house.” This was held sufficiently comprehensive to include a warehouse two and one-lialf feet from the main building but connected together by strips of board nailed upon each building, although the only means of entrance to the warehouse was by a window gained by a cleat ladder on the sides of the building. Of like effect is Home Mut. Ins. Co. of California v. Roe (71 Wis. 33); Hay Ins. (4th ed. § 420 B); Beach Ins. (§ 886). The following quotation is from Joyce on Insurance (§ 1739): “ So insurance on a grain elevator, buildings and'additions’ will extend to. and include a building through which all the grain is received into or discharged from the warehouse, although such building is only attached to the elevator proper by boards nailed to both structures and they are two aud a half feet apart. So a building described as a car factory,’ the policy being upon goods therein, includes goods in a wing connected with the main building by an opening through the wall, usually closed by an iron door, where both the wing and main building are known as the car factory and are both used for manufacturing cars. So a policy on a brick store will include a wooden shed or awning projecting over the sidewalk, supported on pillars sunk into the ground on the farther side and having rafters extended into the brick wall of the building.”

It is a fact not to be overlooked that the only building to which the term “ additions attached ” can relate is this frame building. The language is, therefore, surplusage unless it embraces that building, and we must give effect to every part of the policy if we can do so without obvious violence to the intention of the parties to it.

The structure impinged against the rear of the brick building. It extended onto lot 967 sufficiently to do this; hence it was not wholly on the lot adjoining. The fact that it was upon both lots is not of sufficient moment to relieve the insurer from liability. Nor was it detached. It was connected as closely to the brick building as the nature of the structure would permit.

It is a familiar rule in the interpretation of insurance policies that where any uncertainty exists in the language it will be resolved in favor of the insured. (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307, 313, supra; Matthews v. American Centred Ins. Co., 154 id. 449.) In the latter case we find the following (at p. 456) : “ The policy, although of the standard form, was prepared by insurers, who are presumed to have had their own interests primarily in view, and hence, when the meaning is doubtful, it should be construed most favorably to the insured, who had nothing to do with the preparation thereof.”

These two buildings were occupied by the plaintiff in his furniture business, and we are not required to distort the phraseology of the policy in order to reach the conclusion that it covered the furniture in this wooden structure.

The judgment should be affirmed, with costs to the respondent.

All concurred.

Judgment affirmed, with costs.