58 N.Y.S. 148 | N.Y. App. Div. | 1899
Lead Opinion
Upon a former trial of this action, the plaintiff" recovered a judgment, which, at the general term, was affirmed, but
“A ‘total destruction,’ within the meaning of the policy, must mean the complete destruction of the injured property by fire, so that nothing of value remains of it, as distinguished from a partial loss, where the property is damaged, but not entirely destroyed. This does not mean that the materials of which the building was composed were all utterly destroyed or obliterated, but that the building, though some part of it may be left standing, has lost its character as a building, and, instead thereof, has become a broken mass, or so far in that condition that it cannot properly any longer be designated as a building. When that has occurred, then there is a total destruction or loss; * * * but the inquiry always is whether, after the fire, the thing insured still exists as a building.”
It was held that, in such a case, it was not unreasonable to apply the doctrine which prevails in marine insurance with respect to the total loss of the ship or vessel insured. After commenting upon the English cases, the American rule is stated to be that, if the expense of repair will exceed one-half the value of the ship when repaired, she is considered a total loss, and may be abandoned.. We are somewhat embarrassed as to whether we should apply the reasoning of Judge O’Brien to the decision of this appeal, as that opinion does not seem to have been adopted by the court, it having received the assent of but three judges. The views there expressed, however, are the only authoritative statement of the law as applicable to the case, and, it having received the assent of three members of the court, upon this appeal we will consider Judge O’Brien’s opinion as that of the court, and that we are to follow the reasoning and conclusion there stated.
The premises described in the policy were “the brick and iron building situate at Nos. 148-154 West 23d street, city.” .The condition of the policy was that, “in case of such destruction by fire of the above-named premises that the lease held by the assured shall be by its terms and in fact canceled, this company shall be liable to pay an amount not exceeding the sum hereby insured.” To determine whether plaintiff’s estate terminated, we must refer to the lease between the plaintiff and the landlord. It is there provided that, “in case of the total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall cease and come to an end.” The premises leased were the “premises known as Nos. 148-154 West 23d street, in the city of
The court left it for the jury to determine, upon all the evidence in the case, whether this still remained a building capable of being repaired and restored to its former condition, asking the jury to determine, from the evidence, what the real sound value of the building was on November 23,1892, and instructing them :
“But if you find that the cost of restoration of that building to the condition it was immediately preceding the fire was less than one-half of the value of the building at the time of the fire, then I charge you, gentlemen, that it was not a total destruction, and the defendant would be entitled to your verdict. If, on the other hand, you find that there was a total destruction of this building, then I charge you that your verdict should be in favor of the plaintiff.”
There was no exception taken to this charge of the court by the defendant, the defendant only excepting to some of the requests submitted by the plaintiff which the court charged. We must assume, therefore, that the jury found as a fact that the total cost of restoring
It is conceded by all the witnesses that after the fire the roof was totally destroyed. A part of the walls was also so badly injured by the fire that such part had to be removed and rebuilt. No floors remained. No windows remained. What was left were the four walls of the building, partially injured, which required extensive repairs before they could be again used. Were these four walls, thus standing without roof or window or floors, a building? It is quite evident that the landlord did not so consider it, as he accepted the possession
There was evidence here, that does not seem to have been contradicted, that the cost of these walls, in a perfect condition, would not have exceeded $22,000, including the foundation and the cost of excavating the cellar. Upon any estimate of the value of the building, the value of these walls when new was considerably less than one-half the value of the building itself in the condition it was before the fire; and it is a little difficult to see how the value of this building can be made $90,000, if the value of the four walls, including the cellar and excavation, was not over $22,000. Thus applying the principle stated in the opinion of Judge O'Brien in the court of appeals, considering the new testimony introduced on this trial, it seems to us that it was quite proper to submit to the jury the question as to whether this structure or edifice, as a building, was totally destroyed by the fire in question, so that it, as a building, no longer existed, and that, independently of the fact whether the walls which were standing would be capable of being used in the erection of a new building in place of the one destroyed. It was, at least, a question of fact for the jury whether the building itself, as an edifice, capable of use as a building, had been totally destroyed; and, if they found that the cost of reconstruction would exceed one-half of the value of the building when restored; it was for them to say whether or not there was a total destruction of the building, within the meaning of this clause of the policy.
The exceptions to the evidence and to the charge of the judge at the
It follows that the judgment and order appealed from should be affirmed, with costs. All concur, except McLAUGHLIN, J., dissenting.
Dissenting Opinion
I dissent. The court of appeals, when this case was before it on a former appeal (155 N. Y. 390, 50 N. E. 282), declared the rule of law applicable to the question presented, and that decision is not only the law of the case, but is controlling upon this court, and, when applied, requires an affirmance of the judgment. That court held, upon substantially the same .facts presented by this record, as to the portion of the building remaining after the fire, that the building was not totally destroyed, within the meaning of the policy. “A total destruction,” says Judge O’Brien, “within the meaning of the policy, must mean the complete destruction of the insured property by fire, so that nothing of value remains of it, as distinguished from a partial loss, where the property is damaged, but not entirely destroyed. This does not mean that the materials of which the building was composed were all utterly destroyed or obliterated, but that the building, though some part of it may be left standing, has lost its character as a building, and, instead thereof, has become a broken mass, or so far in that condition that it cannot properly any longer be designated as a building. When that has occurred, then there is a total destruction or loss.” The only difference between the case as now presented and the one presented on the former appeal relates to the value of the building before the fire and what it cost to repair it after the fire. In other respects the cases are identical. The record now before us, as on the former appeal, shows that the roof was burned off, and the interior of the building destroyed, the woodwork was gone, and the iron front also somewhat damaged, but that the foundation and four walls remained after the fire substantially as they were before. It is impossible, after fairly considering this record, and especially defendant’s Exhibit No. 1, a photograph of the condition of the building after the fire, to reach the conclusion that the building was totally destroyed, within the rule laid down by the court of appeals. The prevailing opinion proceeds upon the .theory that the rule laid down by the court of appeals is that if “the total value of this building, when restored, would not. equal an amount double that of the cost of restoring it,” then there was a total destruction. This is not what the court of appeals held, as I understand the opinion, and I am unable to see how any such interpretation can be placed upon it. The reference made in that opinion to marine insurance is simply by way of illustration, and such illustration cannot be seized upon and made a pretext for reaching the conclusion arrived at by Mr. Justice INGRAHAM. Whatever may be said as to the value of the building before the fire, and the cost of repairing it afterwards, the fact remains, and it is undisputed, that the foundation and the four walls remained substantially intact. The building was rendered untenantable, but it was not totally destroyed, and that there was evidence to sustain a finding that the cost of repair