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KLEIN & BROWN v. FIDELITY AND DEPOSIT COMPANY MARYLAND (03/24/69)
CIVIL COURT OF THE CITY OF NEW YORK, TRIAL TERM, NEW YORK COUNTY
1969.NY.40898 <http://www.versuslaw.com>; 299 N.Y.S.2d 298; 59 Misc. 2d 395
March 24, 1969
KLEIN & BROWN, INC., PLAINTIFF,v.FIDELITY AND DEPOSIT COMPANY OF MARYLAND, DEFENDANT
Isaac Anolic for plaintiff.
Hendler, Murray & Watson (Jerome Murray of counsel), for defendant.
Herbert B. Evans, J.
The plaintiffs doing business under the name and style of Klein & Brown, Inc., sue to recover for the loss of a large number of valuable fur skins from premises 352-354 Seventh Avenue, their place of business, for which loss plaintiffs allege they were insured by the defendant under its policy of burglary insurance.
The defendant's answer consisted of a "General Denial" and, as a complete affirmative defense, the defendant claims that plaintiff's alleged loss was not covered by its policy because it was not the result of a burglary within the meaning or definition set forth in endorsement number "3" of the policy.
The proof presented at the trial established the following facts:
(a) Endorsement number "3" of the policy defined "burglary" insofar as it affects this case, to mean: "The felonious abstraction of insured property (1) from within the premises by a person making felonious entry therein by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior of the premises at the place of entry."
(b) Entrance into plaintiff's premises from the public hall is by way of a single metal door secured by two locks, i.e., a Segal cylinder drop-bolt type lock and a doorknob type lock.
(c) On Friday, January 12, 1968 at about 6:00 p.m. the premises were locked, the burglar alarm set and both plaintiffs left together.
(d) On Friday, January 12, 1968 at about 6:14 p.m. a signal received at the Holmes Electric Protective Company central control point indicated that the entrance door to the plaintiff's premises had been opened.
(e) On Friday, January 12, 1968 at about 6:42 p.m. a Holmes guard and a New York City policeman arrived at the plaintiff's place of business. They found the entrance door locked. Using keys in the custody of the Holmes agency, they entered and inspected the premises. They observed no disorder or other evidence of a burglary.
(f) On Friday, January 12, 1968 at about 7:06 p.m., the Holmes guard reset the alarm on plaintiff's premises, locked both locks of the entrance door and departed.
(g) On Saturday, January 13, 1968 at about 7:30 a.m., Mr. Brown, one of the plaintiffs returned to the premises, had some difficulty opening the locks and upon entering discovered that certain fur skins that had been left on the premises the previous night, were missing.
(h) A detective from the Safe, Loft and Burglary Squad of the New York City Police Department was assigned to the case. During the course of his investigation, he obtained custody of the cylinder from the Segal lock of the entrance door and delivered it to the police laboratory for closer examination.
(i) The total value of the skins alleged to have been taken from plaintiff's premises was $9,103.43. (j) 103 of the missing fur skins were found in a public area of the sixth floor of the same building in which plaintiff's premises were located, on the evening of January 12, 1968 by the same policeman who, earlier ...