Ætna Life Insurance v. DuParquet, Huot & Moneuse Co.

120 N.Y.S. 759 | N.Y. App. Term. | 1910

Lead Opinion

Lehman, J.

The plaintiff has brought two actions to recover premiums claimed to be due upon policies of insurance issued by it and insuring the defendant against liability arising, from injuries to its employees employed at certain designated premises. The premiums were to be based upon the amount of wages paid by the defendant to the employees covered by these policies. The policies covered premises 43 and 45 Wooster street and the ways adjacent thereto.

They also covered other designated premises, but Ho. 41 Wooster street was not included specifically in such designations. At the trial it appeared that 43 and 45 Wooster street was a single building occupied by the defendant; that after the first of these policies was issued the defendant leased the premises known at Ho. 41 Wooster street and connected the rear of those premises with their establishment at 43 and 45 Wooster street. If these connected premises became part of 43 and 45 Wooster street, then upon the undisputed facts the plaintiff is entitled to recover the amount demanded in the complaint. The additional premises were used as executive offices of the defendant corporation. The usual entrance to these offices was .through their former premises at 43 and 45 Wooster street. They were connected with the old premises by iron doors. Moreover, the defendant’s billhead states their address as 43 and 45 Wooster street. It seems to me that under these circumstances the executive offices, situated technically in Ho. 41, were regarded simply as an addition to the old premises and that the description in the address of 43 and 45 Wooster street was intended to and did cover also these offices. The premiums were based upon the risk assumed by the plaintiff. If an injury had occurred in the new premises, it seems to me that the plaintiff could not have restricted its liability to the old premises. If its liability extended to the new premises, then also its right of compensation extended thereto.

I find no error in the admission of evidence. The copies of the policies were properly proven. It is undisputed that the original policies have been destroyed. The plaintiff’s witness testifies that he has compared the copies with the originals and that they were true copies. These copies, therefore, became proper secondary evidence to prove the contents of the originals. They were not mere memoranda to refresh the memory of the witness, which could not be introduced in evidence, if the witness could thereafter testify, without referring to the memoranda, as to the contents of the originals. It seems to me that they were themselves evidence and, having been properly proven, were admissible.

The judgments should, therefore, be reversed, and judgments directed for the plaintiff for the amounts demanded in the complaints.

Daytoh, T., concurs.

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Dissenting Opinion

Giegerich, J. (dissenting).

I am compelled to dissent from the conclusion reached by my associates in these cases. After the defendant had taken out a policy specifically covering various locations, including Hos. 43 and 45 Wooster street, I do not think it could have been permitted to extend the liability of the plaintiff as insurer to the adjacent and separate building Ho. 41 Wooster street, in the absence of the consent and approval and acceptance by the plaintiff of such additional building, which might be more hazardous to the persons employed therein and might be a building which the plaintiff would have been unwilling to accept. If-the plaintiff’s responsibility could thus be extended without its knowledge or consent to one additional building, it might be extended with equal reason to any number of additional buildings and its attempted protection of itself by the specification of the buildings covered by its policy would be defeated without any fault on its part. If the plaintiff could not be held liable for injuries occurring in such additional building, then the defendant ought not to be held liable for the added premium based upon the compensation paid its employees engaged in such, additional building. So much for the policy taken out before E"o. 41 was occupied by them.

Passing now to the-policy which was taken out after they had made such addition, I think the grounds are equally strong for reaching the same conclusion. Although the schedule as to location of plants was changed so as to include the new location of one of the defendant’s plants, no mention is made of Eb. 41 Wooster street.

I am of the opinion the judgments should be affirmed, with costs.

Judgments reversed, with costs.