The opinion of the court was delivered by: RYAN
Plaintiff and defendant move for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.
The complaint asserts two claims: In the first, plaintiff seeks to recover $ 5,000 and $ 334.76 costs with interest thereon, under a policy of liability insurance issued by defendant to Trefflich Pet Shop, Inc. (hereafter the insured). This claim is based on the provisions of Section 167, subd. 1(b) of the New York Insurance Law, Consol. Laws, c. 28. In the second claim, plaintiff seeks to recover for the expenses alleged to have been incurred by the insured in the defense of an action brought against him by plaintiff, which defendant declined to defend. This claim has been assigned by the insured to plaintiff.
A copy of the insurance policy has been submitted on this motion and its terms are not disputed. Defendant, under this policy, undertook to insure from January 1, 1944, to January 1, 1945, and by its terms obligated itself, 'To pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him for damages, including damages for care and loss of services, because of the hazards defined in the Special Provisions;' and to ' * * * defend in his name and behalf any suit against the Insured alleging injury, sickness, disease or destruction covered by this Policy and seeking damages on account thereof, even if such suit is groundless, false or fraudulent. * * * .'
The application attached to the policy contains the following Declaration (5) limiting coverage by the Insurer:
'Description of Elevators:
The policy under Definition of Hazards provides coverage for:
'Bodily injury * * * sustained by any person * * * , caused by accident during the Coverage Period and arising out of:
'(a) the ownership, maintenance, ordinary alterations and repairs or use of the Premises or the conduct of the business described in the Declarations and carried on at the Premises;
'(b) the ownership, maintenance, ordinary alterations and repairs or use of the elevators described in the Declarations.'
The policy also sets forth a number of specified Exclusions one of which reads:
'8. This insurance does not apply:
'(d) to the ownership, maintenance of use of any elevator, unless described herein, at the Premises or owned, rented ...