192 A.D. 88 | N.Y. App. Div. | 1920
The plaintiff in the right of the Frank G. Shattuck Company, by subrogation, brings this action to recover the amounts of judgments recovered against said Shattuck Company by one Marie Ethel Barker together with the- costs and expenses incurred by plaintiff for the Shattuck Company pursuant to an indemnity policy of insurance issued to it by plaintiff in . defending the action brought against it by said Marie Ethel Barker. The plaintiff alleges that on the 20th of November, 1915, the Shattuck Company was in possession of the premises No.' 383 Fifth avenue, borough of Manhattan, New York, and was there conducting one of its retail shores; that on said day said Marie Ethel Barker, while lawfully using the sidewalk in front of the premises, stepped into an opening and sustained personal injuries and thereafter brought an action against the Shattuck Company therefor and recovered a judgment which was modified by this court with respect to the amount and affirmed and as so modified affirmed by
The sole and only contention of the appellant is that the policy was an indemnity policy and that it is not shown that the insured sustained any loss. The argument in support of the appeal is that the plaintiff voluntarily paid the judgments and expenses incurred in defending the action, and that there being no allegation that the insured was solvent, there can be no recovery. The contention that the policy is one of indemnity with respect to damages and not for liability merely is sound, but I am unable to agree with the contention that it was essential to a right of action in the plaintiff by subrogation that the payment should have been made by the Shattuck Company from its own funds. Its liability had been finally determined by the judgment of affirmance by the Court of Appeals, which was a lien upon any real property it might have and which deprived it of the right to transfer any of its personal property freely, inasmuch as such a transfer might be challenged on the ground that it was made to hinder, delay and defraud this judgment creditor. The liability of the defendant to the Shattuck Company for reimbursement did not depend upon the collectibility of the judgments or the financial condition of the Shattuck Company. The Shattuck Company was under no obligation to the defendant to jeopardize its financial standing by awaiting
Clarke, P. J., Smith, Page and Merrell, JJ., concur.
Order affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of said costs and ten dollars costs at Special Term.