*1 Hastings et al. ®. Ins. Eire Statement of case.
him, unlеss it is frivolous. plainly an Upon inspection return, find that the we case quite voluminous some- and that what it would complicated, require examination on the merits to decide the have, We point. therefore, con- cluded to hear the if the appeal, desire to appellants argue in view intimations we have given.
If elect to with the they proceed appeal, will be incum- them to bent establish that can upon abandon safely and were jury, finding entitled to a. have legally But, directed in their verdict favor. if the fact question of which the turns out to have upon passed material, jury will still be dismissed appeal and the ; appellants hazard, that, incur the further if material taken exception the trial turns out to at have been well founded, whether upon not, at Term passed opinion General or the order be affirmed and absolute rendered may judgment of their pursuance stipulation. the appellants Unless consent to a dismissal of the appeal, deified, the motion is but without costs.
All concur.
Ordered accordingly. al., Executors, etc., Respondents, Eastburn Appel Company, The Westchester Insurance lant. upon dwelling-house fire
Defendant issued insurance to S. her declaring contained in substance that in case of other propor insurance the insured could recover premises a mortgage Plaintiffs held tionate share of loss. subsequent defendant made an indorse any, plaintiff, payable effect that ment thereon to the substance, clause,” a “mortgage annexed the insurance thereto only, therein of the should be invali as to owner; by any mortgagor and that when dated loss, claiming should sum for ever existed, the com therefor that as *2 Hastings et al. ®. Westchester [March, Co. 142 Fire Ins.
Statement of ease. pany subrоgated all should of the mortgagee in mortgage-debt, held for the however, securities affecting, not claim; of recover whole of his or that the com option, pay might, at pany whole of said claim and take an at the time of the of and of the indorse upon had other insurance the building, S. plaintiffs ment. of which and ignorant. held, In an action upon policy, were that the operated independent anas mortgage mortgagee’s clause insurance of the interest; separate as had taken gave them the same benefit aout imposed upon malting policy, from conditions free that, acts; therefore, responsible only the clause them for their own limiting other did defendant’s case of insurance of insurance, and procured had apply, no not loss, regard plaintiffs of without entitled to recover whole were procured S. additional ” “ held, mortgage requiring clause the mort- that a in the Also ownership any change of notify increase gagees defendant of of with, knowledge, hazard, their came to inconsistent as soon affect, interpretation given so to said clause. and did not days payable sixty after due notiсe made 33y policy a loss was Held, entitled to interest after proof thereof. proof sixty days furnishing of not from expiration from time of of adjusted and settled. the amount loss the time 26, 1878; 1878.) February, 18 decided March
(Argued Appeal Term of the General the Supreme judgment in favor of plaintiffs, in the second judicial department, Court 1279, case under sections submitted (cid:127)entered upon below, Hun, the new Code. 1281 of (Reported as fol- are stated in the submission substantially The facts executors trustees and as the : The plaintiffs, lows surviving deceased, the 8th were on of the will Hastings, George n day May, 1875, thе of a bond and A. D. owners Stout, her Thomas H. C. Stout executed Sarah $14,000 the sum husband, covering- county, Westchester Irvington, premises village 1875-, of' Defendant, May, on said 8th day York. Hew for the sum of insurance its' policy to Mrs. Stout issued on her dwelling-house, of three $10,000, years, a term contains premises, mortgaged said n the follow- Also insurance permitted.” Other : al. lS/S.] Fire Ins. v.
Statement of case. nine : “In case condition numbered other insur- ing ance whether made property hereby prior to the date of this the assured shall subsequent of this entitled recover proportion greater sum insured sustained than the bears to hereby thereon, the whole amount insured whether such other insur- *3 ance or or specific be by by policies.” by general floating 1,1876, Stout, of On consent and September Mrs. at the defendant indorsed request plaintiffs, said Loss, words : to policy Maria following any, payable L. and Eastburn trustees and and at Hastings, mortgagees,” the same time annexed to said clause, following as known “It clause”: is “mortgage hereby specially that this as to the interest of agreed the mortgagee therein, shall not by invalidated of nor property mortgagor 'by occupation purposes more hаzardous premises are than this It also permitted provided and policy. that the shall of notify agreed company mortgagee of of or increase hazard ownership permitted change this as or owner soon as the same mortgagor shall, shall come to Ms or on her reasonable knowledge, demand, same, the additional pay charge accordmg rates, scale of for the time established such increased hazard be or shall been assumed this may company, the continuance of this insurance. And isit during further whenever shall agreed company pay mortgagee sum for loss under that, and shall claim policy, to owner, existed, therefor said shall at once be to all the legally subrogated under all the securities held as collateral mortgagee debt, to the extent of such but payment, shall not of subrogation impair recover the full amount claim, of his or at its said option company may the whole due principal or to due on the grow with the interest then mortgage, accrued, and shall receive full thereupon v. al. [March, Fire Ins. Co. case.
Statement of and all other securities held as col- transfer mortgage, dеbt. lateral to
“GEO. E. CRAWFORD, “ Secretary.” was delivered thereupon On the- plaintiffs. 1876, October, said 20th day dwelling destroyed by loss, notice the loss was fire. Due as- proof given, said, made and said delivered required by policy, November, 1876, on 14th day arbitrators- December, 1876, on the 11th chosen to adjust day arisen difference to amount of such having 1877, the 18th the amount January, loss. On day $9,832.52. at At the time adjusted damages and of of the said the indorsements and of the same to the said Sarah C. Stout had plaintiff, delivery another of insurance obtained *4 $4,000, issued amount Insurance' Lycoming as to a clause contribution case of Company, containing same as the one defendant,, issued not fact of such insurance was known to either but the the- fire, until after the or defendant said the said plaintiffs not The amount of the loss payable plaintiffs. the value the land covered by as adjusted, together more than would not plaintiffs the mortgage, of their foreclosure would not amount mortgage, The claimed the that amount. whole realize $9,832.52, with interest adjusted, said 14, 1877, said date sixty days thereon January being defendant. Defend- delivered after proof of the insurance in the claimed that reason ant Lycoming liable for ten-fourteenths of it was only Insurance Company due also, the amount was not that under the loss ; after the until loss. adjustment days sixty payable claims. Term sustained plaintiffs’ The General issued the for When Frost, appellant. C. r alone was insured. Grosveno title of the owner the ( al. Co. ®.Westchester 145 Ins. Statement of case. Co., Y., Co., Ins. 17 N.
v. At. v. Ins. 391; Crone Niagara id., 60 The indorsement that the loss should be paid 619.) did not interested or person prop change Co., Hun, 659, insured. v. F. Ins. 7 erty Star (Merwin Ins., 459, 378, Ins., on Flanders on F. 661; 441, May 379; §§ Pr., Frink v. Co., Ins. 31 How. 442; Hampden 30.) in suit never ceased to be an insurance of the mortga-. Allen, Y., interest. 389, Ins. v. 43 N. Co. gor’s (Springfield 393, fоr subro 397.) that the insurance showed continued gation owner’s interest. v. Co., Ins. Y.,N. Bowery 17 (Kernochan Co., Abb., v. 8 Greenwich Ins. 418; v. 261; King Bradford Cush., Co., Ins. 7 Booner, M. Norwich Ins. Co. 1; State v. 52 I11., M. Ins. Dutch., Co. v. 2 442; Sussex Woodruff, 541; Ins., Flanders on F. Excel. F. Ins. Co. v. 360-361; Royal Y., Co., Ins. 55 N. Ulster Co. v. 343; Savings Inst. Decker, Hun, 11 M. N. B. and Ins. L. 515; Co. v. L. Co., Ch., Div., Ins. 5 L. 1 G. R. 569 Home v. Ins. Co. Co., J.,L. Co., Balt. 6 Ins. Han. 39; W. v. F. Ins. Mayor Y.,N. 45.)
D. Rowan, Noble The owner of the respondent. prop insured this action could defend erty bring Co., Y., ant. Ins. 30 N. 136; v. Astor Frink (Ripley Co., How., Barb., 30; Hampden By *5 loss, if to the and annex any, making payable mortgagee clause the was in effect the as same ing mortgagee if the had his insured interest. F. Ins. mortgagee (Exel. Co., Y., v.Co. Ins. 55 N. can Royal mortgаgee 343.) not claim the benefit of an insurance effected the mort by Black, Ohio, v. 20 Ins. Col. Co. gagor. 185; (McDonald Lawrence, Cas., v. 1 Ben. Ins. v. 36 512; Wyman Proper, Barb., 368 Pet., v. Prov. ; Co., Ins. Carpenter 495.) Defendant could sue the it restrain company Lycoming compel contribution towards its v. liability. (Hand Co., Ins. Y., 57 N. W'msburgh Ins. Morrell v. 48; Irving Co., 33 id., Co., Mon., 453; Cronin 15 B. Ky.
Sickels—Vol. XXVIII. et al. v. [March, Fire Ins. Court, per
Opinion of the J. Miller, contract insurance A stands upon pre- other and, as basis any agreement same accord- cisely rule, must be interpreted to ance with general according with facts and in connection circumstances its purport The main execution. should object attend its be to to the effect intention to of the out and give parties. carry it for adjudication, was the the case evident presented In secure the as of both parties purpose of a destruction reason loss by buildings against premises. had mortgaged upon situated mortgage of the premises the owner some time by prior executed to said owner to secure her fire for the of three by period damage allowed. Subse- by years, owner, consent of agreed, quently, that an indorsement any, to the and a plaintiffs, should be payable which was policy, by annexed agreed as the interest insurance, therein, mortgagee only not be invalidated should insured, nor lay occupation pre-
of the property more hazardous than was permitted mises purposes contained, others, It also a further pro- among policy. effect whenever should vision, to the company pay for loss, sum and claim mortgagee existed, therefor it should or owner to all the at once be subrogated mortgagee held collateral to the all the securities under the extent but that such debt to payment; subroga- to recover impair tion should or, at of his claim said option, the full amount of whole the mort- might thereof. full and receive gage contract, in the time expressed At the when entry o£ to which stipulation we the policy made, have been obvious referred, appears quite *6 to secure was parties plaintiffs design et al. Court, per of the in the insurance in case of loss named amount ifcke that the defendant should whole five, pay loss, with place subrogation, in case stated happening contingency plaintiffs, claimed, however, counsel, It is аppellant’s "therein. insurance owner that the 'assured, such owner was the ; property solely the defendant to make the loss of good such agreed time, and inasmuch as another existed at the owner, favor of unknown both entirely although defendant, the latter entitled in its the benefit condition contained which policy, declares that in case of whether prior to the date of the assured was subsequent policy, tq entitled recover no sustained proportion greater than the sum insured bears to the whole amount insured thereon. cannot, think,
This I be maintained. Prior to position entered the time when clause was ” owner, assured referred to the word and it is assumed that the would have .hardly accepted there .such a reason suppose affected insurance. prior would by any they They doubt, a would, demanded mort separate policy instead of to the hazard and uncertainty gagees, trusting a of which had no remedy they pursuing to which were .knowledge, they and in to whose had no regard responsibility they strangers, information effect whatever. legal was, that the defendant that in case of loss it agreed would money directly mortgagees ; thus as a distinct were in interest. party It recognized mortgagees, contract created new from.that time with the the terms of most indicate that it had no. clearly rela tion to the condition referred application to. owner, had and the additional pro visions, the mort- incorporated policy by *7 Hastings et al. ®. Westchester Eire Ins. Co. [March,. Court, per clause, created a
gage distinct contract mortgagees,. It was independent agreement in no sense of partaking character of an aof insurance, which the one in but mortgagees recognized sepа- distinct rate party, having and entitled to rights, receive insurance full without money, what- any regard owner of ever property. meaning ” has assured not been word the addition of the- changed clause, the object which towas evidently protect, mortgage the effect of the in which mortgagees that word employed. when, latter was distinct and
The interest separate made, and the intention this the- change was, to insure the question, under a. parties beyond different contract. would lead to- Any interpretation new under the control and.place injustice, great owner, and at the character mercy by changing defendant’s liability, operate might prevent the defendant intended to Iff indemnity provide. referred to either the condition force before or after’ effect other might arrangement, control thus entirely jeopard rights, security, of a The holder who had thus- plaintiffs. mortgage, secured, would have but slender if a been double security effected, could his be without or con- knowledge either before after the contract had sent, made, with, If thus before the jeoparded. his contract arrangement defendant, here, as was the casе contract created affected, and the would seriously furnished much very intended thereby impaired. security either assumption There is no valid ground party intended such result insur- expected the condition and terms of the con- ance could interfere with had entered under into tract which they that the is conceded object clause. It change and it fail would mortgagees, protect if it rested the owner’s such protection power in securing et al. Eire Ins. «. .1878.] *8 Court, per
Opinion J. Miller, interfere their deprive rights. reasonable of the The interpretation just provision, rule laid down under the .aсcordance with facts pre is, that and effect sented force legal shall policy or not be weakened When it impaired. provides invalidated,” shall not it means that it shall continue full named, "valid despite the owner or other construction mortgagor. Any loose, indefinite, would and render unsatisfactory, of but clause in little question comparatively value. The in the -contract incorporated policy is not the case of an ordinary .mortgage assignment of the interest owner to the mortgagee, where the still retains control over the property, affect may destroy where assignees, loss is or to payable some other mortgagee, person, .and it is held that contract with the mortgagor cannot recover in case of a breach of the con ditions of the policy by v. The mortgagor. (Grosvenor Ins. Y., Atlantic Fire 17 N. Brooklyn, 391; Engine Steam Works Co., id., Sun Mutual Ins. Buffalo Where is made 401.) assignment mortgagor collateral to the mortgagee, owner or mortgage, still, rule, as a retains title and mortgagor general posses and as his interest sion continues the same as ; previously, into, unless some new contract is entered no reason exists the contract contained in the why should be changed. alone, "The consent to the which is usually required of an insurance is not by-laws company, enougn the owner divest of his to control, or to deprive benefit conditions and it does waive a policy; not thereby performance of the conditions of are as mate regarded rial at the time of its In case the loss is delivery. payable a third has no who interest in the person, claims the insurance as but collateral for liabili only security incurred latter can prior ties main- Co. [March., al. Ins. 150 ». Westchester Court, per tain an action on of the owner as an appointee iswho authorized to receive the same. v. Hampden (Frink Co., Pr., Barb., 31 How. Case v. Niagara 30; 384; 33, Co., R., 3 Y. & v.. Fire Ins. N. C. Merwin S. 39; [T. C.] Co., How., affirmed Court of 659; Appeals; Star Fire lns. Ins., Ins., 441, on Fire on Fire Flanders May rules cited laid down in authorities appli *9 however; a a cation, to case has been inserted provision where another and. the places mortgagee a different a or from that of mere appointee- assignee footing to receive the loss. The clause was agreed upon, mortgage and a new for this and creatеd an very independent purpose, contract, the control the beyond removes mortgagees of the or effect of of owner prop distinct, and renders have a such who erty, parties mortgagees owner, another and a interest from the embraced in separate cases is to- different contract. The of the recent tendency distinctions, these and thus protect recognize rights and the of the- named in the interest when are and of distinct subjects- regarded Co., of insurance. Fire Ins. Royal Co. (Excelsior Allen, id., Y., N. Ins. Co. v. 343; Springfield second, the effect to the is madе as to A point given this, clause, and it is claimed paragraph intended clause to- indicates that it was not such by clearly of an insurance upon, into mortgagees change shall interest, because it provides their or increase- ownership notify change hazard mortgagor permitted of mort- same came to the as soon as the owner, knowledge drawn, an inference can be do not think that such I gagees. referred to. While the provision change recognizes or' an increase of ownership hazard does not conflict with a owner, separate independent, provi- of the interest Such mortgagees. insur- of a distinct with the existence not inconsistent sion manifest- or adverse interest mortgagees, able al. v. Ins. Court, per mort- protect parties rights intention owner, and to inter- prevent any independent gagees, the latter. Nor does the the same ference subrogation the owner’s interest was insured. The indicate interest insured, if the is, that mortgagees’ argument as the existed required, as to subrogation agreement is, to this The answer that the law. position as a matter of taken as an inasmuch must be entirety ; agreement authorizes the conclusion that previous provision the addition of intended of mortgagees clause, caution, or for by way extraordinary unnecessary If reason, cannot impair nullify provision. clause, it was it is and effectual without valid subrogation it, and its addition cannot destroy validity, so with equally in reference to all its be considered whether agreement or its different parts separately, various provisions, *10 remain the same. the mortgagees are, moreover, reasons for the There strong claiming clause, in is evidence insertion regard subrogation, should be exonerated from an intention the plaintiff 'of as to insur- the the application provision subro- ance, and that the defendant should be protected by the defendant the latter whenever By provision, gation. that as to sum for and claimed paid therefor, the or no existed right liability mortgagor amount of the If the full to be was complete. subrogated exceeded the had been and it paid, owner, as the fact if right existed, the defendant was fully pro- contribution then would not clause. Such tected right as within provision have existed plaintiffs it follows that it was and hence to other and to its pro- to rеstrict operation, intention of parties stipulation a full and sufficient its effect vide against com- is The contract that express intered into for purpose. its provisions, plete interpretation by placing et al. v. Ins. Co. [March, Fire 152 Court,
Opinion of per one to its contrary would adverse plain meaning import.
The construction have we contract of insurance given case in this works substantial justice, plaintiffs thereby receive to them, would what only and if a actually belong made, deduction of four-fourteenths is is claimed should be done, out, no is how, nor are we ablе to see way pointed could obtain balance. claim cannot the benefit of a exe- mortgagees cuted has never been mortgagor, assigned, have reference which in connection. Policies of are not in deemed their nature incident do not cover property heir, another person may grantee, creditor, unless such other ahas person valid Prosser, v. Barb., policy. 36 (Wyman Co., v. 368 Providence Carpenter Peters, Wash. ; Lawrence, Co. v. id., 507, 495 Columbia Ins. 512; Black, Ohio, McDonald makes defendant shall liable proportion but loss; interfere with cannot under not, contract with It there- company. special to consider whether under the fore, of sub- important defendant, which exists favor an action rogation, lies for contribution Insurance Lycoming Company. *11 not the condition referred was intended did
As and not it is to the not to consider whether plaintiffs, necessary apply therein, as used meant the interest the word property,” in the same. (cid:127)the mortgagees of interest was of. Accord- question properly disposed
The the terms of the the loss was payable sixty ing and due notice furnished of the proofs same. The after days therefore, due from that interest, beсame time. Hamilton Fire v. Mayor case Insurance Company decided, and the terms used construed Y., N. 45)
(39 al. Ins. Eire Court, per Rapadlo, of the J. connection with the of the other conditions policy, not, think, we in point. affirmed; should be judgment right, the terms of clause
Rapallo, By attached to the that the insur the defendant agreed ance, as to the interest of should not mortgagee only, invalidated act or of the or owner by any neglect of the nor of the occupation prem ises for more hazardous than were purposes permitted by substance, But it further that if the policy. agreed, should any would not liable to it should be subrogated mortgagor, of the all securities for the under rights debt, or it on the due mort might pay and take an thereof. gage I think that the intent of clause was, in case by reason of owners, act mortgagors should defense claim on their for a against any part loss, the should nevertheless the interest protect as an operate insurance of independent mortgagees, interest, them indemnify fire, against resulting without under the regard mortgagors that, intention, effectuate that policy; we should that, hold the defendant cannot mortgagеes, set defense based up upon any whether committed before or after the mortgagors, or the between making agreement and the (cid:127)company mortgagees.
To hold would, otherwise think, I defeat the purpose intended, and deprive mortgagees protection had a which they rely. Although might he so as construed exempt from the con- sequences of acts of the owners done after making I do agreement, think, in view of its apparent pur- pose, instance, distinction was intended. For *12 the clause provides the as to the of
Sickels.—Vol. XXVIII. [March, Fire Ins. Go. al. v. Court, per the Rapallo, not the occupation shall be invalidated by
the mortgagees, hazardous than more permitted, the for premises purposes as construed is to be the the pro- If policy. agreement future acts the the only against mortgagees tecting it se protection, would deprived mortgagors, that, at the time of happened agreement, mating for pur- were occupied by mortgagors premises being were not though mortgagees ignorant poses permitted, does not clause require fact. language with, consistent not it an I do think interpretation, and intent. spirit the intent of make I think mort- as аn insurance operate mortgagors the same separately, mortgagees give gagees free from had taken out as if they separate policy, benefit owners, the mort- upon conditions imposed making for their acts. It established own responsible gagees and the between company privity mortgagees, that, that the insurance notwithstanding might provided should, nevertheless, as it invalidated mortgagors, and, as a for consideration protect mortgagees that, in case the stipulated company undertaking, under be called circum- should mortgagees, it from which stаnces mortgagors, discharged or an should be indemnified by subrogation, all securities held in case the debt. This provision, it, substance, as to the made invalidated mortgagors, of the interest of the solely mortgagees, by them, unaffected questions direct contract with by any , and the exist between mortgagors. might follow, tanto, from The same would consequences par- pro tial, invalidation, an entire a reduction mortgagors. insur- no additional There case having present the interest of should ance mortgagees, contribution, one their claim to I do think reduce *13 et al. ». Ins. Court, per the Rаpallo, the affected additional insurance on are the interest even existed at the time of the- though mortgagors, in now question, mortgagees having in, no of, and such additional having ignorant For amount insurance. whatever have may in excess the sum which the pay mort could have collected on the policy, were there no- gagors is entitled to company reimbursement, mortgage, by- entitled, the bond and the it is which enforcing mortgage, to that or it them by subrogation extent; and tabe may pay in which case it would be bound to assignment, give- thereon, credit for its contributive share оnly of the loss for isit liable in respect interest of the mortgagors. is If the insufficient to security make the defendant whole1 for its excessive that is no payment, answer the claim of it is a loss from the plaintiffs ; contract resulting defendant with mortgagees.
The derive benefit from the mortgagors sum paid by in excess of the defendant its contributive The proportion. is debt not reduced but payment, only contributive the extent share for which the policy benefit of stood The mortgagors. mortgagors- thereon, on their remain liable bond for the amount payable share, this case the beyond takеs an .contributive If the should, on premises a fore- assignment. mortgaged closure, excess, insufficient to prove pay mortgagors be liable will have deficiency. They their claim Insurance for its Lycoming Company contributive against is identical in share loss which excess the defendant obliged mortgagees. Insurance can claim no benefit from Company Lycoming the defendant to the Whether payment mortgagees. can, for recourse- the defendant indemnity, Company Lycoming proceeds against case. present involved is a question can set up is whether here quеstion claim mortgagees. al. Hazeltine v. Weld et al. [March. Statement of case. *14 in I concur the conclusion of
For reasons stated my Milleb, J., cannot, brother that and that learned should be affirmed. judgment Folger affirmance, Allen, concur for except All Andrews, JJ., dissenting. affirmed.
Judgment Joseph George M. Hazeltine al., W. et Appellants,
Weld al., Respondents. U., warehousemen, wood, & stored a quantity Defendants Brazil receipt, receiving storage charges warehouse which stated the for month, per per and one-half cents ton twelve the terms ofwhich storage could be the contract terminated J. & U. at the end of possession Plaintiffs thereafter entered into month. warehouse assumed, lease, by they terms of outstanding (cid:127)under all con- subsequently storage. for Plaintiffs tracts wrote to J. & U. to remove month, at the end the then current notifying that if wood them not charge per per thereafter (cid:127)removed would be two dollars month. ton defendants, letter was they 'This shown claiméd who had the remain in at specified store wood rate it, receipt pay until declined sold increased rate. market-price did not remove the storage Defendants wood. for did per and one-half cents month. not exceed twelve In an action tо fore- held, plaintiffs’ storage, lien permitting close remain wood not, circumstances, did in under implied store create an contract on part price letter; of defendants to plaintiffs’ in stated were bound to retain the after the contract was terminated, and justified removing would have depositing owner; expense in another warehouse at risk and but having it, they simply charge entitled to retained the market rate for storage. 18, 1878; 26, 1878.) March (Argued decided March Appeal judgment General Term of the affirming Court the second Supreme judicial department, entered of a report referee. judgment action This to foreclose a brought lien, claimed by