Opinion
December 7, 1970
In an action upon an insurance policy to recover a loss sustained by theft of an automobile, defendant appeals (by permission) from an order of the Appellate Term for the 2d and 11th Judicial Districts, dated February 4, 1970, which modified a judgment of the Civil Court of the City of New York, Richmond County, entered February 17, 1969, in favor of plaintiff after a nonjury trial. The modification reduced the amount of plaintiff's recovery. Order of the Appellate Term reversed, with costs, and judgment of the Civil Court reversed, with $30 costs and disbursements, on the law and the facts; and plaintiff's complaint dismissed. In our opinion, plaintiff failed to establish that he was an innocent purchaser of the automobile; and, therefore, he had no insurable interest. His complaint should have been dismissed (cf. Lindner v. Hartford Fire Ins. Co., 33 A.D.2d 686). We see no basis in the record for a finding of waiver or estoppel against appellant. Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur. [ 62 Misc.2d 925.]