#### The Harbor and Suburban Building and Savings Association, Plaintiff, *v.*The Employers’ Liability Assurance Corporation, Ltd., of London, England, Defendant.

(Supreme Court, New York Trial Term,

January, 1913.)

Negligence — indemnity insurance against liability imposed by law—• damages — judgment — temporary suspension of business rendered necessary — actions.

Where, after defendant had issued a policy indemnifying plaintiff, an employer, against loss from the liability imposed by law upon it for damages on account of bodily injuries, accidentally suffered by any one while within or upon the premises described in the schedule annexed to the policy, or upon the premises or ways adjacent thereto, the floor beams and the flooring of the three upper floors and almost the entire roof were destroyed by fire, though none of the exterior walls of the building was injured, and while the policy was in force a third person while passing along the sidewalk in front of the premises was injured as a result of an accident caused by the falling of a brick presumably from the new roof, and recovered judgment against plaintiff herein and another, defendant, in an action on the policy, is entitled to recover the expense incurred in defending the action for personal injuries, together with the amount paid by it on account of the judgment recovered therein.

The building having been only partially damaged, the word “ repairs ” in a condition of the policy granting to the insured the privilege of making such repairs and ordinary alterations as were necessary to the care of the premises and their maintenance in good condition, including ordinary repairs of "the elevator plant and the renewal of its existing mechanical equipment, was limited to such as were necessary to the care of the premises, and plaintiff was within its policy rights when it replaced the roof destroyed with a new one and, in so doing, it did not violate said condition though the policy did not, in express terms, cover injuries to any person engaged in the making of alterations or additions of a structural character.

A temporary suspension of business rendered necessary by the fire was not a breach of warranty that the premises were occupied as an apartment hotel.

In the absence of proof when a check given by plaintiff for the amount it paid on account of the judgment in the action for *151personal injuries was delivered, or that said cheek was received in payment, it will not be given that effect, but where the proof is that said check was paid within two months of its date and the present action was brought just one day within the ninety days fixed by the policy, a motion to dismiss the complaint, on the ground that the payments made by plaintiff on account of the loss were made more than ninety days before the action was commenced, will be denied.

Action to recover damages upon a policy of fire insurance.

Robert H. Grimes, for plaintiff.

Bertrand L. Pettigrew (Herbert 0. Smyth, of counsel), for defendant.

Erlanger, J.

The defendant issued to the plaintiff a policy indemnifying it against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any person or persons whomsoever, while within or upon the premises described in the schedule annexed to said policy or the premises or ways adj acenfc thereto.

On the 9th of September, 1907, a fire occurred on the premises in question destroying the floor beams and flooring of the three upper floors and almost the entire roof.

While the damage to the building and contents from fire and water reached the aggregate sum of $43,440.50, none of the exterior walls of the building were injured, and in passing one would not notice that there had been a fire there at all. On September 23, 1907, the plaintiff entered into a contract with the John C. Gabler Company to “ remove all burnt and charred roof beams, roof boards, damaged tins, etc., furnish and erect new roof beams where necessary; rebuild bulkheads over vent shaft over elevator and stairs and also build covering over coppered tanks; furnish and lay roof boarding and plaster cement roof; also furnish and erect three looped skylights as before; repair or replace with new where necessary all copper flashing; cover sides of boarding over tank with galvanized iron; do all necessary *152beam filling and remove all rubbish which belongs to the roof from the premises.” The work was to be completed within ten days from the date of the contract and the price agreed to be paid therefor was $2,157.

In laying the roof it was necessary to remove some loose brick and to replace them. The result of the work performed by the Gabler Company was in effect to construct a new and permanent roof in place of the one which the fire had destroyed.

Pending the life of the said policy and on the 28th of September, 1907, one James F. Hughes while passing along the sidewalk in front of said premises received certain bodily injuries as the result of an accident caused by the falling of a brick presumably from the roof; thereafter the said Hughes brought an action against the plaintiff and the Gabler Company, to recover damages for the injuries sustained by him, and after a trial judgment was entered against the plaintiff and its codefendant for the sum of $40,164.82, which judgment was affirmed on appeal. On September 26, 1910, the plaintiff paid on account of said judgment the sum of $3,767.55, and in addition incurred an expense of $1,659.56 in defending said action. Subsequently this action was brought to recover from the defendant the total of said two sums. At the close of the trial the defendant moved to dismiss the complaint upon the grounds, (a) that the risk was not covered by the policy and that condition C thereof was violated; (b) that the schedule of warranties 4 was violated in that the premises were not occupied as an apartment hotel but on the contrary were being used for the purpose of alteration and were in the custody of the contractor; and (c) that the payments made by the plaintiffs on account • of the loss were made more than ninety days before this action was commenced. Ho other question was raised before me by the defendant except those mentioned, and each will be considered in the order stated.

In respect of the first (a), the claim of non-liability is rested upon the following clause in the policy:

> *“ Condition C.*Privilege is granted under this policy to *153make such repairs and ordinary alterations as are necessary to the care of the premises and their maintenance in good condition, including ordinary repairs of the elevator plant and the renewal of its existing mechanical equipment, hut this Policy does not cover on account- of injuries or death caused to or by any person engaged in the making of alterations or additions of a structural character, unless a written permit is granted by the Corporation specifically describing the work, and an additional premium paid therefor.”

It is urged that as the roof was almost entirely destroyed plaintiff could no more construct a new one within the terms of the policy than it could rebuild in case the premises had been entirely consumed. The building however was not wholly destroyed but only partially damaged, and we are concerned only with the conditions as they actually exist. If in fact there had been a total destruction the question of repairs would not apply as that term contemplates an existing structure which has become imperfect from the action of the elements or otherwise. Gagnon v. United States, 193 U. S. 457.

The crux of the case then is, did the work involve what the policy expressly forbade unless a written permit was granted by the insurer specifically describing the work to be performed. If it did, and alterations or additions of a structural character were made without the insurer’s consent and the payment of the additional premium provided for, plaintiff cannot succeed.

In considering this proposition and for the sake of convenience, the condition clause referred to will be divided into two parts, the first of which will comprise all from the beginning down to and including the words *“*mechanical equipment.” It is important under the first part to determine what is meant by the word “ repairs.” This term has a very broad meaning and includes restoration to a sound or good state after decay, waste, injury or partial destruction. 34 Cyc. 1336. It relates to the restoration of an existing condition (Matter of Board of Public Works, 144 N. Y. 444), and includes new roofing, new plumbing and what*154ever is resonably necessary to keep up a house. Stephens v. Milnor, 24 N. J. Eq. 358, 373. In Weaver v. Templin, 113 Inch 303, the Supreme Court laid down the rule that under authority to repair there can be no enlargement and improvement except in so far as the work of repairing necessarily enlarges and improves-. And in Fritsch v. City of Allegheny, 91 Penn. St. 228, it was said that “ repair ” means to restore to sound or good condition after injury or partial destruction. Our Court of Appeals has held that the substitution of a new bulkhead for one that had become useless by decay-was a repair though more durable material was used. Townsend v. Northwestern Ins. Co., 18 N. Y. 168—172. Under the strict rules of the common law if a tenant covenanted to repair and the building occupied by him was destroyed by fire or other casualty during the term of the lease, he was required under his covenant to erect a new one for the owner even though he was without fault (24 Cyc. 1089), and this was the law of this state prior to 1860. This last example is referred to simply to show how far the courts have gone in defining the word under discussion.

Suppose the roof in this case had been blown off by the wind, could there be any question as to the right of the assured to restore it ? It seems to me not. Rann v. Home Ins. Co., 59 N. Y. 387-390. True in the case last cited it was held that the insured was not tied up either to ordinary or even to necessary repairs and that restoring the roof was an incidental repair. Here the insured was not tied up to ordinary repairs, but only to ordinary alterations, and whether the roof was blown off by the wind or destroyed by fire it was an act of the elements and could be restored. The repairs were limited to such as were *“*necessary to the care of the premises and their maintenance in good condition.” If it was intended to confer the right to make simple repairs only, plain language should have been employed to restrict such right. A building without a roof is uninhabitable and to maintain such building in good condition a roof is a *sine qua non.*Surely this was a necessary repair, and even if it was of a structural nature, so long as it was not an altera*155tion. or addition it was quite within the provisions of the contract.

Has the second part of the condition been in any way .violated? Under it the risks excluded were such as arose while alterations or additions of a structural character were being made without the insurer’s written permission. It has been held that to make an alteration in a building or thing it is necessary to vary or change the form or nature of such building or thing without detsroying its identity. Davenport v. Magoon, 13 Ore. 1; Chicago Lumber & Coal Co. v. Garmer, 132 Iowa, 282. And so it has been decided that the removal of a stoop and areaway is an alteration. City of New York v. United States Trust Co., 116 App. Div. 352. In Brown v. Broadway & Seventy-second St. R. Co., 131 App. Div. 782, it was said, that when an alteration or change in a building is spoken of, the usual meaning of the phrase is an alteration of the structure itself, as distinct from mere additions to the outside of the building, or mere additions to the building itself which have no relation to its structure and make no change in its character. And in Rickerson v. German-American Ins. Co., 85 Hun, 268, Judge Van Brunt said: “The ordinary signification of the word ‘ addition ’ seems to be something added to.” Clearly within the meaning of these terms it cannot be said that in replacing a roof destroyed by fire either an alteration or an addition of a structural character has been made. There was no change in the structure nor was anything added to it not there at the time the policy was issued. The terms employed in the condition are clear and as shown have well defined meanings. Ho ambiguity or doubt exists in respect of either of them and effect should be given to their plain intent.

The conclusion reached by me on this branch of the case is, that plaintiff was within its rights when it replaced the roof destroyed with a new one and that it did not violate the condition in doing the work.

With regard to the second ground (b) presented by the defendant to dismiss the complaint, namely, that the schedule of warranties 4 was violated by the assured, it is *156sufficient to say that the warranty was not a continuing one. A temporary suspension of business rendered necessary by an unforeseen occurrence did not breach the warranty. Am. Ins. Co. v. Brighton Cotton Mfg. Co., 125 Ill. 131. The. words in the warranty *“*The premises are occupied as Apartment Hotel ” was a statement *in prcesenti*only, and if the insurer desired to protect itself as to the future use of the building it was obliged to use language plainly importing such intent. Smith v. Mechanics & Traders Ins. Co., 32 N. Y. 399; Dolliver v. St. Joseph Fire Marine Ins. Co., 131 Mass. 39; O’Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122.

Referring to the last ground urged for a dismissal of the complaint (c) that the payment made by the plaintiff on account of the loss was not so made within ninety days before this action was brought, the answer furnished by the evidence is that on August 29, 1910, a check was drawn by plaintiff for the sum of $3,767.55 to the order of Lester R. Palmer, but was not paid until September 26, 1910. If the check was accepted in payment on the day it was drawn then plaintiff’s right to recover under the policy is lost, as more than ninety days elapsed between its date and the commencement of the action.

There are, however, two answers to this contention. The first is, that condition F of the policy provides that the loss or expense incurred and paid *must*be in money. It is well settled that a check is not a payment of the debt for which it was given, unless taken in absolute satisfaction. There was no proof offered before me when in point of time the check was delivered, nor that it was received in payment,

■ and it cannot be given that effect. O’Connor v. Mechanics Bank, 124 N. Y. 324; Carroll v. Sweet, 128 id. 19; Bradford v. Fox, 38 id. 289. The second answer is, the check was in fact paid in money on September 26, 1910, and the action was brought on December 24, 1910, just one day within the ninety fixed by the policy.

The motion to dismiss the complaint is denied, and judgment is directed in favor of the plaintiff for the sum of $5,427.11. Exception to defendant.

The findings are returned to the clerk. It is requested *157that each party serve upon the other a copy of his proposed findings and that no evidence he included therein to he passed upon by the court; such findings to be submitted within five days.

Judgment accordingly.