Graf v. National Surety Co. — 146 A.D. 782

Majority

p. 782

Joseph L. Graf, Appellant, v. National Surety Company of New York, Respondent.

First Department,

November 3, 1911.

Headnote

Insurance — burglary insurance — when no change in conditions of risk.

One insured against burglary does not change the “conditions and circumstances of the risk” by allowing workmen to paint his house and relay floors without first obtaining the written consent of the insurer, if trusted servants remained in the house and the plaintiff and members of his family slept there the greater part of the week.

Appeal by the plaintiff, Joseph L. Graf, from an order of the Appellate Term of the Supreme Court bearing date the ' 5th day of January, 1911, and entered in the office of the clerk of the county of New. York, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered upon the verdict of a jury, and granting a new trial,

Alexander Rosenthal, for the appellant.

Joseph T. Magee, for the respondent.

Plaintiff appeals from a determination .of the Appellate Term reversing a judgment of the Municipal Courts and ordering a new trial.

The .action is upon a policy of burglary insurance, and the sole question presented is whether or not it constituted a change in “the conditions or circumstances of the risk” to permit workmen to be employed in painting plaintiff’s house' and relaying floors therein without first obtaining the written consent of the defendant. There can be, we think, but one answer to this proposition, -and that is the negative. If it appeared that plaintiff had wholly turned the house over to workmen a different question might be presented, but that was-not the case made by the evidence. The plaintiff’s tried servants remained in the house, and plaintiff himself or some member of his family sleffi in the house, except bn Saturday and . Sunday nights, when tney were in the country.

p. 783

To apply the rule contended for by defendant would amount to holding that in the case of burglary insurance upon a dwelling house, the policy would be avoided whenever any workman, such as a plumber or gasfitter, was called in to make repairs. We cannot accede to any such stringent rule..

The determination of the Appellate Term must be reversed, and the judgment of the Municipal Court affirmed, with costs to the appellant in this .court and' the Appellate Term.

Ingraham, P. J.,. Laughlin, Miller and Dowling, JJ., concurred.

Determination reversed and judgment of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.