Kraus v. Monticello Insurance , 5 Misc. 2d 591 ( 1957 )

Aron Steuer, J.

This is an application pursuant to subdivision 3 of section 59-a of the Insurance Law which provides that in a suit against a foreign insurance company not licensed to do business in this State that the company as a condition for filing any pleading must deposit with the court cash or securities or a bond, in an amount to be fixed by the court sufficient to secure the payment of any final judgment which may be rendered in such action. The question here is as to the amount of the deposit or bond to be required.

The insurance involved is fire insurance on a loft owned by the plaintiffs and the defendant is one of the three companies who had policies on the building. It appears without contradiction that the policy in question was issued at the behest of National Shoes, Inc., a tenant in the building. The lease to National Shoes by the plaintiff contained a provision that the said tenant would furnish the landlord fire insurance coverage in the sum of $8,000. National Shoes, Inc., was a tenant in several different buildings and a number of its leases contained similar clauses. To perform under them it applied for and was issued a single policy in the amount of $100,000 covering some 14 different locations therein enumerated. There is however no allocation of coverage as between these different buildings.

It is plaintiffs’ contention that defendant’s policy insures the building for $100,000 and on that basis taking plaintiff’s estimate of the loss and allocating it among the three companies according to their coverage, defendant’s share would be some $24,000. This interpretation has the enthusiastic support of the other companies, but not of this court.

Plaintiff contracted for a coverage of $8,000. It received a policy which was ambiguous in that respect but at least showed compliance by the tenant with his agreement. Plaintiff does not claim to be misled by the policy. His coverage and defendant’s are as he contracted.

Motion granted and defendant directed to deposit with the clerk $8,000 or post a bond in that sum.