Hannon v. Hartford Fire Insurance

41 A.D. 226, 58 N.Y.S. 549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Goodrich, P. J.:

By the policy of insurance upon which this action is brought the defendant insured the plaintiff against loss by tire “ to the following described property, while located and contained as described herein, •and not elsewhere, to wit :

“ $150 — On frame shingle roofed dwelling house and additions thereto.

“ $150 — On household furniture * * * (and other household articles) * * * while contained therein.

“$100—• On frame shingle roofed barn, No. 1, and attachments thereto.

“ All situate near Rock Hill, Sullivan county, N. Y., and occupied by assured.”

After the issuing of the policy, one of the additions mentioned in it was detached from the house and moved to a point on the plaintiff’s land, thirty feet distant from its original position, where it continued to be used for kitchen purposes until it and its contents were destroyed by fire.

It will be observed that the policy covered a risk on “ property while located and contained as described herein, and not elsewhere.” The only location of the property described in the policy is : “ All situate near Rock Hill, Sullivan county, N. Y., and occupied by assured.” The removal of the kitchen addition for a distance of thirty feet created no condition which, in terms, excluded the kitchen from the location described in the policy, and if it were not for a somewhat ambiguous clause in the agreed statement of facts signed by both attorneys, upon which the motion to dismiss was made, we should have no difficulty in arriving at a conclusion. That clause reads: “ It is not intended by this motion to raise the question that by reason of the removal aforesaid the hazard was increased.” That is, the defendant made a motion to dismiss, and in making it admitted that it did not claim that there was any increased hazard occasioned by the removal, and this statement is tantamount to an admission on the part of the defendant that the hazard was not increased. We are thus brought to the question whether the removal invalidated the policy, where the addition continued to be on the plaintiff’s land and within the terms of the location described in the policy, though its precise location was changed a distance of thirty feet.

It is not entirely clear that the word “ located ” refers at all to the buildings, although it precedes and apparently relates to the several items which form the subject of the risk, because it is connected by the word “ and ” with “ contained.” “ Contained ” could not apply to the buildings. It can relate only to personal property in the buildings. If “ or ” had been used instead of “ and,” there would have been no difficulty, but we think the words “ located and contained ” relate solely to the personal property. Thus construed, there is no ambiguity in the policy. The words “ dwelling house and additions” would cover even a detached addition, and that whether detached before or after the issuance of the policy.

If there is any ambiguity or doubt as to what risk was intended to be covered by the policy, it must be resolved in favor of the insured. In point of fact, if we may judge by results, it is evident that the risk not only was not increased, but was actually diminished by the removal, for the fire was confined to the removed kitchen, and with our common knowledge of the lack of facilities for extinguishing fires on farms we may assume that a similar fire in the kitchen when it was annexed to the house would have resulted in the destruction of the entire building. There was then no increase of the risk accepted by the defendant, and this being assumed, we must hold that there was no change of risk, and that the judgment must be affirmed.

All concurred.

Judgment affirmed, with costs.