222 A.D. 219 | N.Y. App. Div. | 1927
This action is based upon a fire insurance policy. The learned court at Trial Term directed a verdict for the defendant Hartford Fire Insurance Company of Hartford, Connecticut, upon the ground that the assured lost its rights under the policy because it failed to give immediate notice of loss, as required by the policy, for the reason that an agent of the assured mistakenly assumed that the policy had lapsed. (127 Misc. 408.)
For the reasons hereinafter given the judgment must be reversed and a new trial ordered.
The facts, in so far as necessary to indicate the reasons for our decision, are briefly as follows: The action is one of nine actions upon nine separate insurance policies against the respective insurers. It was stipulated that they should be tried as one, that separate judgments should be entered, that one appeal should be taken and that the judgments in the other actions should abide the event of this appeal. All of said policies are in the standard form upon the same property of the Alexandre Works, Inc. The policy involved in the case at bar was issued to “ The Alexandre Works, Inc., for account of whom it may concern and /or as interest may appear.” It further provides: “ Loss, if any, payable to the Hemp-stead Plains Company, The Greenwich Bank, and The New Nether-land Bank of New York, as their respective interests may appear.” Of the other policies, five were issued to “ Alexandre Works, Inc., as owner,” three were issued to “ Alexandre Works, Inc., and /or The Greenwich Bank, as interest may appear.” All of the policies insured “ Alexandre Works, Inc., for account of whom it may concern.” All of the policies also mentioned the Hempstead Plains Company, the Greenwich Bank and the New Netherland Bank of New York as mortgagees or payees. There were two fires; the first occurred January 29, 1922, and the second February
“ May, in his work on Insurance, in effect says, that if the notice is required to be immediate, the requirements will be met if it is given with due diligence under the circumstances of the case, and without unnecessary and unreasonable delay, of which the jury are ordinarily the judges.”
At the time of the fires the assured was not in default under the policies. The insurance companies had received the premiums and issued protection for loss in accordance with the provisions of the policies. It is true that they cannot be made to pay except in accordance with the terms of the contract and no court can
In Solomon v. Continental Fire Ins. Co. (supra), from which the quotation above is taken, it appears that it was not until fifty days after the fire that the policy was found, and it was there held it could not be said as a matter of law that the service of the notice was too late under the requirements of the policy.
There are, however, other facts in the case at bar upon this question of notice which cause us to arrive at the same result. As already noted, the indorsements on the policies said “ loss, if any, payable to The Hempstead Plains Company, The Greenwich Bank and The New Netherland Bank of New York, as their respective interests may appear.” Whether or not the receiver, standing in the place of the mortgagor, gave notice of loss with sufficient promptness under the circumstances of this case, does not affect the rights of any of these other claimants. The policies provide: “Upon failure of the insured to render proof of loss such mortgagee shall, as if named as insured hereunder, but within sixty days after notice of such failure, render proof of loss and shall be subject to the provisions hereof as to appraisal and times of payment and of bringing suit.”
Because of the situation of the parties and of the fact that the mortgagee would not be in possession of the premises, the requirements of notice of loss do not apply to the mortgagee equally with the owner. This much may at least be said: That it is clear under
While, as noted, in but five of the policies, and in respect of the interest of the Hempstead Plains Company only, was the standard mortgagee clause incorporated, such clause is to be read into all the policies, since they are payable as interest may appear, and the particular interest where not defined is but a matter of proof. As was said by Judge Miller in McDowell v. St. Paul Fire & Marine Ins. Co. (supra), in discussing the rights of a mortgagee under a policy without a mortgagee clause but payable “ as his interest may appear:” “This court decided in Heilbrunn v. German Alliance Insurance Co. (202 N. Y. 610) that the said later provisions relating in terms to the ‘ insured ’ or mortgagor did not apply to a mortgagee and adopted the opinion of Mr. Justice Scott on the point. (Vide 140 App. Div. 557.) There was a mortgagee clause attached to the policy in that case, but the reasoning of that opinion applies Avith equal force to a case like this, in which, by an indorsement on the policy, an interest is created by the act of the parties in favor of a mortgagee.” It, therefore, follows that as to the mortgagee defendants, appellants in the case at bar, the same requirements as to time of mailing notice of loss required of the OAvner cannot be said to apply to them.
We are thus brought to a consideration of the question raised by the respondent that the appointment of a temporary receiver in bankruptcy of itself voids the policies in question. Upon principle,
In Bowling v. Continental Insurance Co. (86 W. Va. 164, overruling Bronson v. New York Fire Ins. Co., 64 id. 494) it is said: “ The appbintment of a receiver does not effect a change of title to the property. He is merely a custodian or caretaker acting for and under the direction of the court whose representative he is. When he assumes possession of the property, he does so in the capacity of temporary occupant whose only duty is to preserve the assets intrusted to him pending the determination of the court respecting conflicting claims thereto, and if in favor of the owner, to return his property to him intact, as far as possible under the circumstances. The receiver enjoys none of the beneficial incidents which ordinarily are characteristic of a legal possession. He represents not his own but the interests of others.”
In Walradt v. Phœnix Ins. Co. (136 N. Y. 375) the Court of Appeals said: “The change of possession produced by the levy and the action of the sheriff remains to be considered. The policy is not avoided, by the terms of the condition referred to, by every change of possession that may take place in the property. A change of occupants, without increasing the hazard, is excepted
The appointment of the receiver by the court, therefore, did not void the policies.
The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.
Dowling, P. J., Merrell and McAvoy, JJ., concur.
• Judgment reversed and new trial ordered, with costs to the appellants to abide the event.