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Alexandra Restaurant, Inc. v. New Hampshire Ins. Co.

Supreme Court of New York, Appellate Division First Department

June 24, 1947

No Number in Original


 [*346]   [**516]  DORE, J. Plaintiff, lessee of a restaurant, was insured by defendant against loss by fire on improvements of a structural  [*347]  character. A fire occurred  [**517]  causing net damages of such improvements in the agreed sum of $3,954.89. Plaintiff's landlord under the terms of the plaintiff's lease became obligated to repair the damage and did so. In this submission of controversy between plaintiff, the insured lessee, and defendant, its insurer, under sections 546 and 548 of the Civil Practice Act, the issue is:

Does the landlord's complete restoration of the premises after the fire prevent the insured lessee from recovering against defendant, its insurer, the amount of the fire loss?

Plaintiff contends that defendant, as plaintiff's insurer against physical loss by fire cannot escape payment under [***4]  the policy merely because a third party, plaintiff's landlord, who did not cause the loss, has made it good. Defendant insurer, contends that the insured cannot recover under the terms of the policy because at the time the policy became payable, sixty days after proof of loss, plaintiff's restaurant had already been fully restored by the landlord to the condition in which it existed before the fire.

In March, 1942, in consideration of the premium paid, defendant issued a so-called "Improvements and Betterments" fire insurance policy insuring plaintiff from January, 1942, to January, 1945, against all direct loss and damage by fire to an amount not exceeding $20,000 on the improvements and betterments of a structural character attached to that part of the building in 8 East 49th Street, in which plaintiff's restaurant was situated. Plaintiff, the insured had paid $18,000 for the improvements and clearly had an insurable interest when the policy was issued and when the loss and damage occurred by reason of the fire.

On December 29, 1943, while the policy was in full force, a fire occurred not from any cause excepted from the policy, and concededly without fault of either the insured [***5]  or its landlord. The fire partially damaged the improvements to the extent of $3,954.89.

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272 A.D. 346 *; 71 N.Y.S.2d 515 **; 1947 N.Y. App. Div. LEXIS 3289 ***


Prior History:  [***1]  SUBMISSION of a controversy pursuant to sections 546-548 of the Civil Practice Act.


insured, landlord, repair, insurance company, damages, subrogation, contractor, premises, parties, third party, restored

Insurance Law, Property Insurance, Coverage, General Overview, Claim, Contract & Practice Issues, Policy Interpretation