Rickerson v. German-American Insurance

32 N.Y.S. 1026 | N.Y. Sup. Ct. | 1895

VAN BRUNT, P. J.

This action was brought to recover upon a policy of insurance issued by the defendant to P. Samuel and J. Alexander, of which policy the plaintiff became the owner, subject to the interest of a mortgagee. The dispute which has arisen between the parties to this action is as to the property insured by the said policy. There is no demand made by either party for a reformation of the policy, and the question depends, therefore, upon the construction to be given to the terms of the policy. The question as to what the parties intended by the policy was submitted to the jury, and, they having found a verdict in favor of the plaintiff, from the judgment thereupon entered, and from the order denying the motion for new trial, this appeal is taken. It does not seem to us, however, that there is any question for the jury to pass •upon, as there does not seem to be any ambiguity in the terms of the policy. By the policy in question the defendant insured against loss or damage by fire the brick building and additions, including gas, steam, and water pipes, yard, fixtures, railings, stoops, and sidewalks, in front of, and all fixtures contained in or attached thereto, or under sidewalk thereof, situate No. 160 Mott street, city of New York, occupied for stores and dwelling. The lot to which the number 160 attached was about 25 feet wide, and 107 or 108 feet deep. The front of the lot was occupied by a three-story brick building, 25 feet, by about 46 feet deep; the first floor being occupied as a liquor store, and the other floors as dwellings. On the east side was a two-story extension, of about 16 feet in depth. Upon the rear of the lot was a five-story brick factory building, having independent walls on all its four sides, being about 24 feet wide by 37 feet deep. There was a space between the rear wall of the extension on the front building and the front wall of the rear building of about 7 feet. This space was filled in by a small frame structure, three sides of which were formed by the walls of the rear building, the extension of the front building, and the wall of the building on the next lot, boards being nailed up to form the front, and boards being nailed down to form the roof. There was a window in the extension which looked into this small structure, and a like window in the factory. The usual way of entering the rear building was through an alleyway under the front building, by a wooden stoop, to the first floor of the rear building, and down some steps to the basement. Passage from one building to the other could only be effected by crawling through the windows which have been spoken of. The ordinary entrance to this frame building was from the yard, and it was used by the tenant of the rear building. The question presented is whether the policy in question covered the rear building as well as the front. It is to be observed that there is only one building insured, with the additions to such building, which it is represented in the policy were occupied as stores and dwellings. It is difficult to conceive how the rear building is to be considered as an addition to the front building, there being no connection between the two, because this small frame structure cannot be considered a connection. It certainly was not intended to connect the rear with the front building, nor was it used for any such purpose. The fact of the existence of windows in the front and rear buildings, making it possible to crawl into this frame structure, temporary in its nature, in no manner made the large brick factory an addition to the smaller building on the front. And furthermore, by the terms of the policy, the building insured is represented as being occupied for stores and dwellings, and it is only the front building that answers this description. The rear building was used almost entirely as a factory, with a very small portion of it occupied as a store for the sale of the goods manufactured therein. Under these circumstances, it is difficult to see how, under the terms of the policy as it reads, it is possible to include this rear factory building. As has already been observed, the buildings were absolutely independent of each other, and intended for different uses; and the mere fact that this frame structure adjoined each building could in no way make the rear building an addition to the front building, any more than it could make the front building an addition to the rear. The ordinary signification of the word “addition” seems to be “something added to.” But these buildings are entirely disconnected, and do not seem to have been intended to have any connection with each other as buildings, and the addition, moreover, would seem to be of greater magnitude than that to which it is added. It is undoubtedly true that the large amount of insurance which was obtained would seem to indicate an intention upon the part of the owner to have insured all the buildings that were situated upon this lot, and if there was any mutual mistake between the parties in that respect it would have been necessary to reform the policy, in order that it might cover all these structures. But, there being no application or allegation looking towards such reformation, we can only construe the language of the policy as we find it. Applying the ordinary significance of language to the terms contained in this policy, which was issued upon a brick building and additions, occupied for stores and dwellings, we cannot make such language cover another and independent building, occupied almost exclusively for the purposes of a factory. Under all the circumstances of the case, it seems to us that there was no question for the jury to pass upon, but that, under the interpretation of the language of the policy, the rear building was excluded. The judgment appealed from must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.