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Rosenthal v. American Bonding Co. of Baltimore

Supreme Court of New York, Appellate Division

March 24, 1911

SOLOMON M. ROSENTHAL and Others, Respondents,

Page 363

APPEAL by the defendant, the American Bonding Company of Baltimore, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 31st day of May, 1910, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 27th day of May, 1910, denying the defendant's motion for a new trial made upon the minutes.


John Ewen of counsel [Wilder, Ewen & Patterson, attorneys], for the appellant.

Ernest Hall, for the respondents.


This is an action on a burglary insurance policy. At the close of plaintiffs' case both sides moved for the direction of a verdict. The court directed a verdict for the plaintiffs and from the judgment entered thereon and from the order denying a motion for a new trial the defendant appeals. The plaintiffs are merchants dealing in silks at wholesale. Their place of business was in the first loft of the premises 463 Broome street. The defendant issued to plaintiffs a policy whereby it insured them 'For direct loss by burglary of any of the merchandise described in the schedule hereinafter contained and stated to be insured hereunder occasioned by its felonious abstraction from the store, warehouse, office, loft or rooms, hereinafter called the premises and actually occupied by the Assured in the manner set forth in the Schedule, by any person or persons who have made forcible and violent entrance upon the premises, or exit therefrom, of which force and violence there shall be visible evidence; * * *. Special agreements. (A) The company shall not be liable: (1) Unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom; * * *.'

Page 364

The proof established that at about half-past seven o'clock on Monday morning, June 17, 1907, two of plaintiffs' employees entered the store or loft which was up one flight of stairs to prepare for business. They opened the door with a key, and shut the door after entering, but did not lock it. The stock clerk testified: 'I walked over to the electric box and gave the Holmes people the signal everything was all right, and they gave me two bells back. I walked back to open the shutters. I no sooner got to the rear of the store when the door was flung open. I saw a man come in with a gun in each hand. He ordered me to throw up my hands and I refused to do it, * * * and he started to beat me. He was punching me right along. * * * He took the butt of his gun and struck me in the back of the head with it. I fell over the counter, and as I fell over he told the young fellow that was with him to bind my hands. * * * That door was closed on that morning when I was in the store. Q. When these people came in did they throw open the door? A. Yes, sir.'

The clerks were tied up hand and foot by straps, taken into the back office, a bandanna tied over their faces, and the two men, a discharged employee and his brother, carried away about $1,000 worth of goods. There was a subsequent arrest and indictment. It is not disputed that there was a 'felonious abstraction' of goods of the plaintiffs from their store accompanied with violence, threats and the display of deadly weapons.

There is no doubt that the transaction constituted burglary in the third degree under section 498 of the Penal Code, in force at the time of the acts complained of: 'A person who either, 1. With intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building; or, 2. Being in any building, commits a crime therein and breaks out of the same; Is guilty of burglary in the third degree.' Section 499 defines 'break' as follows: '* * * 2. Opening, for the purpose of entering therein, by any means whatever, any outer door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window, shutter, scuttle or other thing used for covering or closing an opening thereto, or therein, or which gives passage from one part thereof to another.'

The turning of the handle and the opening of the closed door was

Page 365

a breaking. 'If, therefore, the prisoner in entering the cellar unlatched the door immediately communicating with it, there was a breaking and entry which would constitute burglary, provided the other constituent of the offense was made out, viz., that the prisoner entered with the intent to commit a crime.' ( McCourt v. People, 64 N.Y. 583. See, also, People v. Bush, 3 Park. Cr. Rep. 552; Tickner v. People, 6 Hun, 657.)

In People v. Gartland (30 A.D. 534) it was said: 'There can be no doubt that the prisoner, with two companions, went into the apartment through that entrance door. * * * But he claims that there was not sufficient proof to show that there was any breaking or force, used in any way, to gain an entrance, so as to bring his acts within the statutory definition of burglary. * * * That definition [Penal Code, ยง 499] is satisfied if the proof shows that the appellant opened, by any means, the outer door of the apartment named in the indictment. That he gained entrance through that door is, as said ...

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