
    Dominic T. Perrotta, Respondent, v. Empire Mutual Insurance Company, Appellant.
    Supreme Court, Appellate Term, Second Department,
    February 4, 1970.
    
      Philip Hoffer, Rose L. Hoffer, Peter T. Affatato and Raymond J. MacDonnell for appellant. Charles J. D’Arrigo and Howard Newman for respondent.
   Per Curiam.

The finding of the trial court that plaintiff was an innocent purchaser for value of a stolen automobile is not questioned by defendant on this appeal. In the light of such finding, it is our opinion that plaintiff had an insurable interest in the automobile at the time it was stolen from him (Skaff v. United States Fid. & Guar. Co., 215 So. 2d 35 [Fla.]; Barnett v. London Assur. Corp., 138 Wash. 673; Norris v. Alliance Ins. Co. of Philadelphia, 1 N. J. Misc. 315). However, his recovery should be limited to the amount demanded in the complaint (see Michalowski v. Ey, 7 N Y 2d 71).

The judgment should be unanimously modified by reducing the amount of plaintiff’s recovery to $5,050, with interest and appropriate costs in the court below, and as so modified, affirmed with $25 costs to plaintiff.

•Concur — Margett, P. J., Rinaldi and Cone, JJ.

Judgment modified, etc.  