Leventhal v. Home Insurance

32 Misc. 685, 66 N.Y.S. 502

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1900
• Status: Published

Opinion

Per Curiam.

This action is brought upon a fire insurance policy issued by the defendant. The policy by its terms covered “ household furniture * * * bedding, linen, wearing apparel * * * the property of the assured or any members of the family, contained in the brick building occupied as a dwelling situate at N0. 228 East Broadway,” in the city of New York. The policy stipulated that the insurance should attach and cover the property “while located and contained as described herein, and not elsewhere.” The property destroyed, consisting of household linen and wearing apparel, was, at the time of the fire, not within the house, but hanging upon a clothes line running from the rear of the building mentioned in the policy, to a building fronting on Division street. There was a frame extension to the Division street building. The fire which injured the plaintiff's property originated in this extension. Upon this state of facts the justice awarded judgment to the plaintiff for the amount of his loss. In.this he erred. Hothing is better settled in the law of fire insurance than that the description of the place of deposit of the property written into the policy and accepted by the insured is a warranty by him of its particular location, and that the truth of the warranty becomes a condition precedent to any liability to him from the insurer. Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; Bahr v. National Fire Insurance Co., 80 Hun, 309. It is a well-known and firmly-established rule, as from the very nature of the contract it must be, that the place where the personal property covered by insurance is kept, is of the essence of the contract, since, by that fact, is the character of the risk largely determined. Hence the property is deemed to be covered by the insurance only while in the place described. The present case furnishes an apt illustration of the necessity for the enforcement of such a rule. The property was insured while in the building described in the policy. It was destroyed while outside the building, and in consequence of a fire originating in another building. If the property had remained in the place specified in the policy it need not have been injured by this particular fire, and the loss upon which this action is founded would not have accrued. It is clear that the property was not at the time of the fire contained within the building specified in the policy. There is nothing in the policy from which the liability can be extended beyond the four walls of the building. To so extend it would be to make a new contract for the parties, and this the court cannot do. For these reasons the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Truax, P. J.; Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.