Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Appeal is taken by defendant from an adverse verdict and judgment entered thereon resulting from the action of the County Court in granting plaintiff's motion for direction of verdict and in denying defendant's motion for judgment of dismissal. The trial court's actions were based on a finding that there were no disputed questions of fact which could properly be submitted to the jury.
Plaintiff brought suit for recovery under mercantile open stock burglary policy, issued by defendant to plaintiff. Plaintiff suffered a burglary loss in the amount of $2,322.06 on March 8 or 9, 1953 between the hours of 6:30 P.M. and 6:30 A.M. and within the policy period. The defendant denied liability under the terms of the policy wherein, under conditions and limitations, is stated:
The company shall not be liable for loss or damage * * * (4) contributed to by any change in the condition of the risk; * * *."
The facts elicited at the trial showed that plaintiff operated a retail appliance store which premises occupied a series of addresses, No. 173-175, 177 and 181 Van Houten St. with No. 181 being the corner store in the City of Paterson, New
Jersey. Plaintiff's stores at No. 177 and No. 181 were separated by a store at No. 179 which was not insured by defendant at the time of the burglary.
A common party wall existed between No. 179 and No. 181, pierced by five windows of which only one was visible and that only from the No. 181 side, with the No. 179 side appearing as a completely smooth wall. The premises at No. 179 were covered with sheet rock, leaving no window openings at all on the wall bordering No. 181. On the 181 side of the common wall the construction was masonry with cinder blocks on the inside covered with fir strips and then plastered. On the 181 side of the wall the plastered fir strips covered all windows in the masonry except the fifth window at the far rear of the store. This window was six feet wide and five feet high, resting on solid masonry construction about three and one-half feet from the floor.
Beginning in February 1953 the wall was torn down to the floor level at all of the windows so as to permit walking through from No. 179 to No. 181. Plaintiff planned to use both stores for its business. Openings were made by removing the four windows spaced about four feet apart and the portions of wall beneath the windows to the floor level, all of which had been covered with paper-covered plaster board, referred to as "knotty pine finished sheet rock." Before doing this work the builder made barricades on the No. 181 side of the wall to cover the openings. These barricades were built of 2" x 4"s securely covered with plywood squares from the floor to the ceiling. Thus, prior to the construction work the wall between No. 179 and No. 181 was, to the eye, a smooth solid wall from both sides, whereas and while the barricades were up the 2" x 4"s and the plywood boards attached to them were clearly visible from No. 179 side of the wall.
Police testimony was that plaintiff's premises at No. 181 were burglarized, that entry thereto had been made by breaking through a rear window of No. 179, entering No. 179, going to the barricade and forcing the plywood away from the 2" x 4"s by an instrument. Police and other testimony
indicated that hammer and crow-bar marks were visible at the ...