Primo Outfitting Co. v. Glens Falls Insurance

Appellate Division of the Supreme Court of New York

Primo Outfitting Co. v. Glens Falls Insurance

269 A.D. 906, 56 N.Y.S.2d 449, 1945 N.Y. App. Div. LEXIS 4413

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 1945

StatusPublished

Cited by3 cases

This text of 269 A.D. 906 (Primo Outfitting Co. v. Glens Falls Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Primo Outfitting Co. v. Glens Falls Insurance, 269 A.D. 906, 56 N.Y.S.2d 449, 1945 N.Y. App. Div. LEXIS 4413 (N.Y. Ct. App. 1945).

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Opinion

Action under a policy 'of insurance, issued to plaintiff by defendant, to recover for loss . of merchandise stolen from an automobile. Defendant appeals from an order of the Appellate Term affirming a judgment of the Municipal Court in favor of plaintiff, and from the judgment entered in accordance therewith. Order of the Appellate Term and the judgment of the Municipal Court reversed on the law, and the complaint dismissed on the law, with costs to appellant in all courts. The only inference which may be derived from the proof is that no employee was in the garage at"the time that the automobile was stolen. In consequence, it was unattended at that time within the meaning of the language of the policy which provided that “ The automobile * * * shall not be deemed attended when the person employed as the attendant is not immediately adjacent to the automobile * * * .” (See Kinscherf Co., Inc., v. St. Paul F. & M. Ins. Co., 234 App. Div. 385, 386.). Recovery, therefore, could be had only in accordance with the warranty of the assured in the policy that such automobile “ will be securely closed and locked at all times when left unattended.” The proof of breach of this warranty is conclusive. The doors were unlocked and the ignition key was in the automobile. The fact that the rear compartment from which the merchandise was stolen was locked does not constitute compliance with the warranty which, in our opinion, required the assured or its salesmen to make use of all such locks as are generally and ordinarily provided on an automobile. Hagarty, Adel and Aldrich, JJ., concur; Close, P. J., and Lewis, J., dissent and vote to affirm, with the following memorandum: In our opinion the policy should not be interpreted as meaning that the car is " unattended ” while it is stored in a public garage. [See post, p. 941.]

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Action under a policy 'of insurance, issued to plaintiff by defendant, to recover for loss . of merchandise stolen from an automobile. Defendant appeals from an order of the Appellate Term affirming a judgment of the Municipal Court in favor of plaintiff, and from the judgment entered in accordance therewith. Order of the Appellate Term and the judgment of the Municipal Court reversed on the law, and the complaint dismissed on the law, with costs to appellant in all courts. The only inference which may be derived from the proof is that no employee was in the garage at"the time that the automobile was stolen. In consequence, it was unattended at that time within the meaning of the language of the policy which provided that “ The automobile * * * shall not be deemed attended when the person employed as the attendant is not immediately adjacent to the automobile * * * .” (See Kinscherf Co., Inc., v. St. Paul F. & M. Ins. Co., 234 App. Div. 385, 386.). Recovery, therefore, could be had only in accordance with the warranty of the assured in the policy that such automobile “ will be securely closed and locked at all times when left unattended.” The proof of breach of this warranty is conclusive. The doors were unlocked and the ignition key was in the automobile. The fact that the rear compartment from which the merchandise was stolen was locked does not constitute compliance with the warranty which, in our opinion, required the assured or its salesmen to make use of all such locks as are generally and ordinarily provided on an automobile. Hagarty, Adel and Aldrich, JJ., concur; Close, P. J., and Lewis, J., dissent and vote to affirm, with the following memorandum: In our opinion the policy should not be interpreted as meaning that the car is " unattended ” while it is stored in a public garage. [See post, p. 941.]

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269 A.D. 906, 56 N.Y.S.2d 449, 1945 N.Y. App. Div. LEXIS 4413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/primo-outfitting-co-v-glens-falls-insurance-nyappdiv-1945.

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