Rosenbloom v. Travelers Insurance

38 Misc. 744 | N.Y. App. Term. | 1902

Per Curiam.

The policy in question insured the plaintiff’s assignor “ against loss from common-law or statutory liability (being solely the contingent liability so imposed upon the assured as owner or general contractor) for damages on account of bodily injuries * * * resulting from negligence of any contractor or subcontractor engaged in the construction ” of the building mentioned in the application for said policy. The policy contains the further provision to the effect that if the assured is the owner of the building mentioned in the application “ it is agreed that all the work of constructing the same is to be done by contract at the risk of the contractor or contractors and that the assured has not and will not by contract or otherwise voluntarily assume any liability for loss on account of bodily injuries suffered by any person or persons by reason of the negligence of any contractor or subcontractor.” It is difficult to determine what the policy covers. By its terms the plaintiff’s assignor was assured only against the contingent liability imposed by the common law or by statute upon the assured as owner of the premises described in the application on which the policy was granted and was not assured against his own negligence. In other words, he was not assured against the negligence of his contractor, nor was he assured against his own negligence. The record shows that one Levy, the assured, was the owner of the buildings in East Broadway, which "were constructed by separate contractors, and that one Oullberg, an employee of one of said contractors, was injured while on said premises and while the buildings above mentioned were in the course of construction; and that said Oullberg began an action against said Levy upon the ground that the accident to said Cull-berg happened through the negligence of the said Levy. The record does not show that the plaintiff has brought himself ydthin the provisions of the policy of insurance. If the accident happened through the negligence of the contractors the defendant would not be liable. If the accident happened through the negligence of said Levy, and we are bound by the record which shows that it did happen through his negligence, the defendant would not be liable. By the stipulation between the parties hereto it was stipulated that the trial justice, before whom the action of Oullberg against Levy was tried, decided in favor of said Cull-berg because the accident happened to said Oullberg through the negligence of said Levy, and, therefore, the admission of the record which did not vary or change that stipulation was not error.

The judgment must be affirmed, with costs.

Present: Ebeedman, P. J., Tbuax and Gildebsleeve, JJ.

Judgment affirmed, with costs.