Marcus v. United States Cas. Co.
Decision Date | 19 July 1928 |
Citation | 162 N.E. 571,249 N.Y. 21 |
Parties | MARCUS v. UNITED STATES CASUALTY CO. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Samuel M. Marcus as receiver in proceedings supplementary to execution of the property, assets, and estate of James J. Kane and another, against the United States Casualty Company. From a judgment of the Appellate Division (223 App. Div. 702, 226 N. Y. S. 861), affirming a judgment of the Trial Term entered upon a verdict directed by the court in favor of plaintiff, defendant appeals, and, from an order reversing an order of the Trial Term denying defendant's motion to correct the judgment in the matter of interest, plaintiff appeals. Reversed and rendered.
See, also, 222 App. Div. 508, 226 N. Y. S. 601.
Appeal from Supreme Court, Appellate Division, First department.
Harry J. Leffert, of New York City, for plaintiff appellant and respondent.
William Butler and George F. Hickey, both of New York City, for defendant appellant and respondent.
James J. Kane, J. Winters Kane, and Emil Kane were the owners and in possession and control of premises situated at 102 Front street, in the borough of Manhattan, city of New York. One of their tenants, Seeman Bros., Inc., occupied a portion of the premises situated on the second floor. On the 8th day of October, 1921, an employee of Seeman Bros., Inc., named John Borger, was proceeding to a toilet room maintained on the second floor by the Kanes for the use and convenience of the tenants and their employees. Near to the entrance of the toilet were the doors leading into the elevator shaft. There were no distinguishing marks or signs on any of the doors. Borger mistaking the entrance to the elevator shaft for the entrance to the toilet, pushed open the doors and stepped into the shaft, fell to the bottom, and received severe bodily injuries.
He thereupon commenced an action against the owners in the District Court of the Southern District of New York, and recovered a judgment of over $12,000, which on appeal was affirmed by the Circuit Court of Appeals of the Second Circuit.
The Kanes were insured by the United States Casualty Company, which received notice of the injury and of the suit, but which failed to defend in behalf of the owners on the ground that the accident was excluded from their policy.
This action has been brought by the receivers of the property and assets of the Kanes to recover from the United States Casualty Company the amount of its alleged liability upon the policy. The question presented is whether Borger's accident was covered by the insurance.
The owners took out this casualty insurance through one Henry N. Wittpenn, who procured the policy from the United States Casualty Company. Upon the delivery of the policy, the following took place:
‘Mr. Kane asked me what the policy covered, and I told him. He said to me: ‘I don't wish to take this policy with the elevator coverage, because no one uses this elevator but myself. It is for our own use. The tenants are not using this elevator. For that reason I don't wish to have it covered. I only want the public liability coverage without elevator.’'
Thereupon the agent took the policy back to the company, had it rewritten, excluding the elevator. On the day of the accident, therefore, the policy contained certain clauses stating what it did not cover. It read:
In a schedule annexed to the policy there was described ‘a hand power rope hoist-not covered.’
The accident to Borger happened October 8, 1921. Two days thereafter Mr. Kane told Wittpenn, the insurance agent, to have the present policy changed or indorsed so as to include the elevator, and thereupon there was typewritten on the policy the following clause:
‘Additional premium, $4.48.
‘In consideration of an additional premium of four dollars and forty-eight cents ($4.48) it is understood and agreed that the insurance under this policy is hereby extended from noon of this date to cover a hand power rope hoist, located at premises 102 Front street, New York City, New York.’
[1] With this history of the insurance in mind, we may again ask whether the policy covered the accident. It did not cover any loss...
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