19 A.D.2d 538 | N.Y. App. Div. | 1963
In an action to recover upon fire insurance policies (first cause of action) and to recover damages arising from an alleged breach by defendant Mar cato Elevator Company, Inc., of an elevator maintenance contract (second cause of action), the court, after a non jury trial, found in favor of plaintiffs on the first cause of action and in favor of defendant Elevator Company on the second cause of action (see 33 Mise 2d 816, 34 Mise 2d 687), and judgment of the Supreme Court, Kings County, was entered accordingly on May 10, 1962. On plaintiffs’ appeal, this court previously affirmed so much of the judgment as is in favor of the Elevator Company and against the plaintiffs (18 A D 2d 841). The instant appeal is by the defendant insurance companies from so much of the judgment as is against them and in favor of the plaintiffs. Each of the fire insurance policies contained a clause under “Exclusions” which provided: “Electrical Apparatus Clause: This Company shall not be liable for any loss resulting from any electrical injury or disturbance to electrical appliances, devices or wiring from artificial causes unless fire ensues and, if fire does ensue, this Company shall be liable only for its proportion of loss caused by such ensuing fire.” The Trial Justice held that the burden was on the defendant insurance companies to prove that the loss came within this exclusionary clause. He found as a fact that a fire had occurred in the elevator motor room in plaintiffs’ premises, causing damage to the equipment therein; that it was not possible to determine whether the fire preceded or followed a short circuit of the elevator equipment wiring; and that plaintiffs were entitled to recover on the first cause of action since the insurance companies had failed to sustain their burden of establishing that the loss fell within the exclusion (see 33 Mise 2d 816, 34 Mise 2d 687, supra). Judgment, insofar as appealed from, affirmed, with costs. No opinion. Ughetta, Acting P. J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.
