223 A.D. 296 | N.Y. App. Div. | 1928
This is an action upon a policy which insured, among other things, against theft. The case was tried by the court without a jury, and judgment was rendered for the plaintiffs. The judgment must be reversed since. the property stolen was not within the coverage of the policy.
The plaintiffs’ business was that of buying job lots of furs, which had been used as samples, taking the furs so purchased upon the road, hiring stores in various cities, exposing the furs for sale and moving from one urban center to another until the entire line had been sold and delivered directly to purchasers. After holding one of these sales in a store hired by the plaintiffs for the purpose, the goods remaining unsold were packed in trunks preparatory to being moved to another city for sale. During the night time the trunks and their contents were stolen from this store.
Was the merchandise stolen covered by the policy of insurance? The policy is designated “ Commercial Travelers’ Form.” The policy insures against theft under the following conditions: “ This policy covers theft of an entire shipping package, excluding all pilferage in transit as above, or while checked in any hotel, but same applies only to such shipping package or packages while in the custody of a common carrier under check or receipt, or while checked in any hotel and not elsewhere.” “ This policy does not cover in any business premises of assured.” As above noted, the goods were stolen from a store hired by the plaintiffs and not while in the custody of a common carrier or while checked at a hotel. The policy, thus, upon its face, does not cover the theft of the goods in question.
The respondents, however, seek to bring the loss within the coverage of the policy by reason of a typewritten rider on the policy reading: “ Privilege to sell from samples.” The respondents claim that this incidental rider changes the whole meaning of the policy and argue that, since it would be inconvenient to sell from sample while the goods were in the custody of a common carrier or checked in a hotel, therefore this rider makes the policy cover the goods while in the custody of the plaintiffs anywhere on the road. To lend additional support to this construction, the respond
It follows that the judgment and order appealed from should be reversed, with costs, and the complaint dismissed, with costs.
Dowling, P. J., McAvoy, Martin and O’Malley, JJ., concur.
Judgment and order reversed, with costs, and complaint dismissed, with costs.