201 A.D. 538 | N.Y. App. Div. | 1922
The action is brought upon two policies of burglary insurance identical in form, but of different amounts and dates. Both policies cover the time in question, when it is claimed that the loss occurred. Unless the policies have been canceled or have become ineffective by the death of Mark Samuels, who was named in the policies as the person insured, the policies were still in force at the time of the burglary.
It is not necessary here to determine whether the death of Mark Samuels canceled the policies. Authorities in other States hold to the contrary. (Hardesty v. Forest City Ins. Co., 77 Ill. App. 413; affd., 182 Ill. 39; Burbank v. Rockingham M. F. Ins. Co., 24 N. H. 550; Westchester Fire Ins. Co. v. Dodge, 44 Mich. 420; Pfister v. Gerwig, 122 Ind. 567; Georgia Home Ins. Co. v. Kinnier, 28 Gratt. |Va.] 88.)
The cases upon which the defendant relies in this State are Matter of Hine v. Woolworth (93 N. Y. 75) and Sherwood v. Agricultural Ins. Co. (73 id. 447) which were decided upon policies which are clearly distinguishable from the policies here in question, inasmuch as those policies contained provisions that the policy shall be void if the interest in the property is transferred “ by operation of law ” which would include the passing of the title upon the decease of the party insured. No such provision is contained in the policies in question. The policies were written by defendant. The time covered by the policies was one year from date. That time had not expired. It would seem if it had been the intention to limit liability to the lifetime of the insured that the policies would have so stated. It is perhaps unnecessary, however, to determine this question in this case, because as I read the policy the complaint presents no right of recovery in any event. The policy is clearly a policy as stated as against “ mercantile safe burglary.” It is a policy for loss by burglary “ of Money in current use, Bullion, Securities (as hereinafter defined), uncancelled United States Government Post Office or Revenue Stamps and Merchandise described in the Schedule hereinafter contained and therein stated to be insured hereunder in consequence of the felonious abstraction of the same during the day or night from the safe or safes described in the said Schedule, and located in the office or store-room actually occupied by the Assured and described in said Schedule, and herein
The complaint alleges in paragraph 9: “ That thereafter and on or about October 24, 1920, a burglary was committed at 136 Fifth Avenue, being the place of business of said Mark Samuels, assured, and goods, wares and merchandise, consisting of furs and upwards of the value of $26,000 were stolen from the said location.” There is no allegation in the complaint of any burglary from a safe, as against which only the defendant in the policies in question agreed to indemnify the plaintiff.
The judgment and order dismissing the complaint should, therefore, be affirmed, with costs.
Clarke, P. J., Page, Merrell and Greenbaum, JJ., concur.
Judgment and order affirmed, with costs.
