Fitzgerald v. Atlanta Home Insurance

70 N.Y.S. 552 | N.Y. App. Div. | 1901

Chase, J.:

The. appellant challenges the ownership by the plaintiff of the property insured and states many other grounds why it claims that the plaintiff is not entitled to recover herein. In this opinion we shall only consider the nature of the property insured, and of the mortgages thereon, and whether the plaintiff, in stating in her proofs of loss that the property insured was not incumbered, made a false statement within the meaning of the part of the policy relating thereto. Included in the property insured were packing cases, bottles and casks. The evidence shows that there were at the brewery building at the time of the fire 200 or 300 packing eases, being the ordinary cases tó hold bottles for delivery to customers and for shipment; also 80 or 90 gross of bottles used for delivering and shipping lager beer, and also about 1,000 oak casks used in connection with the brewing business for holding and shipping the products of the brewery. The plaintiff included this property in the schedule attached to her proofs of loss as a part of the property insured by the defendant and as a part of the property destroyed by the fire, and the value thereof is stated by her to have been $3,650, or a little less than one-third of the amount stated by her as the value of all the property insured by the defendant.

The Court of Appeals in McRea v. Central Nat. Bank of Troy (66 N. Y. 489) stated three requisites to constitute a fixture: 1. Actual annexation to the realty or something appurtenant thereto. 2. Application to the use or purpose for which this part of the realty.with which it is connected is appropriated. 3. The intention of the party making the annexation to make a permanent accession to the freehold.

The shipping cases, bottles and casks are not fixtures when tested by this rule. These articles are in no way affixed to the realty or anything appurtenant thereto, and are no more applicable to the purposes of the plaintiff’s brewery than are farm implements to a particular farm, mechanical tools to a particular workshop, or household appliances to a particular house. The description of the prop-. erty contained in the policy in controversy recognizes the transitory and chattel nature of the property described in it. It is only insured “ While located and contained as described herein and not elsewhere, to wit, * * * all while contained in the * * * brewery building * * * ” The mortgages given by the plaintiff expressly included personal property, but stated therein that such property should be considered a part- of the real estate. That the plaintiff has seen fit to call the personal property by another name in an instrument between herself and a third party does not change its character in fact or estop the defendant from insisting that the contract of insurance shall be construed With reference to the real nature of the property insured and the ordinary meaning of the language employed. The- Court of Appeals, in the McRea case, says: “ If the property had, in its own nature, a determinate legal character either as realty or personalty, the manner in which the parties treated it would not change that character.” Persons are not concluded by recitals in instruments to which they are not parties. (Tyson v. Post, 108 N. Y. 217.) That the packing cases, bottles and casks were personal property cannot be reasonably questioned. It is settled in this State that where insurance is made on different kinds of property each separately valued the contract is severable, even if but one premium is paid and -the amount insured is the sum total of the valuations. (Pratt v. D. H. M. F. Ins. Co., 130 N. Y. 206; King v. Tioga Co. Patrons Fire Relief Assn., 35 App. Div. 58.) In this case the articles of property insured were not separately valued, and the contract of insurance was entire, and indivisible. The contract of insurance being entire and indivisible, a cause of avoidance or forfeiture in respect to a part of the property insured affects the whole contract.- (16 Am. & Eng. Ency. of Law [2d ed.], 954.) Some of the property enumerated in the defendant’s policy may have been so affixed to the building as to have become a part of the realty and to have lost its character as personal property, but as a material part of the property insured by the defendant was personal property, it should have been treated as such by the plaintiff' and must .be treated as such by the court. Confessedly, all of the property was included in the mortgage to the Brooklyn Trust Company of May 20, 1898, and the mortgage to McLaughlin of November 2, 1898. No particular form is necessary to constitute a chattel mortgage. (McCaffrey v. Woodin, 65 N. Y. 459.) ' An instrument given in the form of a real estate mortgage conveying real estate, including therein personal property, is a chattel mortgage, so far as the personal property is concerned, and must be filed as provided' by statute and treated as a chattel mortgage. (Hoyle v. Plattsburgh & Montreal R. R. Co., 54 N. Y. 314; Stewart v. Beale, 7 Hun, 405 ; Guaranty Trust Co. v. Troy Steel Co., 33 Misc. Rep. 484; Sheldon v. Wickham, 21 App. Div. 628 ; reversed on another point in 161 N. Y. 500 ; Stevens v. Buffalo & N. Y. City R. R. Co., 31 Barb. 590.)

. The trust company treated its mortgage as a chattel mortgage so far as the personal property was concerned and immediately filed the same in the proper town clerk’s office and the same was as to the personal property and chattels included therein a chattel mortgage. When the plaintiff swore to her proofs of loss she knew that it contained a statement that there was no incumbrance upon the property insured and she knew that she had given mortgages on all the property mentioned in the policy to the Brooklyn. Trust Company and to McLaughlin. An incumbrance is a claim or lien upon property. If, as between the parties to this action, the mortgages, so far as they related to personal property, were chattel mortgages, there is no dispute but that the statement in the proofs of loss was an erroneous one. The mortgages as between the parties thereto were a lien on the property insured whether it was real or personal estate; consequently the incumbrances on the property should have been stated by the plaintiff regardless of the character of the property. The learned trial justice was asked by the defendant’s counsel: “I ask you to charge the jury that on the evidence in this case the property insured under our policy was incumbered at the time of. the fire and the making of the proof of loss.” To-this the court replied: “ I charge that in connection with the charge-already made.” It is not clear from an examination of the charge of the court what was intended by the trial justice by his reference to the charge already made. The language of the proofs of loss is plain and unambiguous and plaintiff’s statement of good faith was not sufficient to justify the submission to the jury of any question relating to her failure to state the incumbrances on the property insured.

Judgment reversed on the law and facts and new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new .trial granted, with costs to appellant to abide event.