Erie County v. Continental Cas. Co.

• Decision Date: 29 December 1944
• Citation: 268 A.D. 603,52 N.Y.S.2d 627
• Parties: COUNTY OF ERIE, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant.
• Court: New York Supreme Court

268 A.D. 603

52 N.Y.S.2d 627

COUNTY OF ERIE, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant.

Supreme Court of New York, Fourth Department.

December 29, 1944

APPEAL from a judgment of the Supreme Court, Erie County, in favor of plaintiff, entered May 6, 1943, upon a general verdict directed by the court at a Trial Term (PIPER, J.), following findings of a jury on specific questions submitted by the court. The appeal brings up for review (1) an order of the same Supreme Court (PIPER, J.), entered March 12, 1943, which denied a motion by defendant to set aside the verdict of the jury and their answers to the questions submitted to them and (2) a further order of the same court (PIPER, J.) entered March 12, 1943, which denied a motion by defendant for a new trial.

COUNSEL

Frank Gibbons for appellant.

Edward D. Siemer and Ralph A. Lehr for respondent.

Per Curiam.

This action was brought upon the safe-burglary portion of an insurance policy whereby defendant insured plaintiff for a period of one year from February 13, 1941, against loss of money and securities by safe burglary, interior robbery and messenger robbery, upon the conditions therein provided.

On January 18, 1942, plaintiff suffered a loss as the result of the burglary of securities of the value of at least $112,000 from its safe (Pittsburgh Safe Co. No. 7844), which was then located in its premises known as No. 134 West Eagle Street Buffalo, N.Y.

The policy in suit covered loss by burglary of securities in the amount of $100,000 from within such safe 'and while such safe or vault is located in' the interior of the building on premises known as No. 513 Washington Street, Buffalo, N.Y Concededly, some six weeks prior to the burglary, plaintiff removed this safe and its contents from the Washington Street premises to the West Eagle Street premises without the defendant's consent to such removal.

In the course of defendant's investigation of the burglary, its representatives obtained affidavits from some of plaintiff's employees and statements from certain of its officials. Defendant then disclaimed liability for the loss upon the grounds that the policy did not cover a loss occurring at the West Eagle Street premises and that plaintiff had breached its warranty in respect to providing day watchman service as required by the policy.

The plaintiff apparently recovered judgment in the trial court upon the theory that, while plaintiff's removal of the safe from the location specified in the policy to a location not mentioned therein constituted a breach of warranty nevertheless, under section 150 of the Insurance Law, plaintiff was entitled to recover unless such breach materially increased the risk of loss. Undoubtedly, by the enactment of this section 150 in 1939 (L. 1939, ch. 882), the Legislature 'was seeing to it that a policy of insurance will not be avoided by proof of an immaterial 'breach of warranty."' (DESMOND, J., in Glickman v. New York Life Ins. Co., 291 N.Y. 45, 51.) This section, however, in our opinion, does not aid the plaintiff in the case before us because the change of location was not a breach of warranty within the meaning of this...