82 N.Y.S. 817 | N.Y. App. Div. | 1903
This is an action on an insurance policy to recover for a fire loss. The complaint alleges that on the 30th day of June, 1902, on the application of the plaintiff, the defendant issued a policy of insurance “ to indemnify Perfecta Packing Case Company and plaintiff ‘ as interest may appear ’ against loss or damage by fire to an amount not exceeding in the aggregate the sum of two thousand dollars ” on trade fixtures, machinery and appliances; that five days prior thereto the Perfecta Packing Case Company, then being the owner of the property, executed a chattel mortgage “upon a part” thereof to the plaintiff to secure a loan of $2,000; that on the twenty-fifth day of August thereafter the property was wholly destroyed by fire; that the "value of the property was $2,801.19 ; that the plaintiff duly furnished proof of loss and of his interest, and has demanded payment of the ■sum of $2,000, and judgment is demanded for the sum of $2,000, together with interest and costs.
The only question presented by the appeal is whether the Perfecta Packing Case Company should have been joined as a party plaintiff. It may be and doubtless is a necessary party to the action, for the plaintiff does not allege that his mortgage covers all of the property insured. The demurrer before us, however, does not present" the question as to whether the ' Perfecta Packing Case Company should have been joined as a defendant- or should be brought in before the trial. A defect of parties defendant may be raised by answer when it does not appear on the face of the complaint and by "demurrer when it does, and, so far as the defendant is concerned, is waived-when'not thus raised. (Code Civ. Proc. § 488, subd. 6, §§ 498, 499.) Notwithstanding that the failure to take the objection by answer or demurrer is declared by section 499 of the Code to be a waiver thereof, the Court of Appeals has recently decided that the defendant may, without interposing the objection by answer or demurrer, raise the question on the trial and that it will then become the duty of the court to require the plaintiff to bring in a party defendant apparently having an interest in the subject-matter of the action adverse to that of the plaintiff. (Steinbach v. Prudential Ins. Co., 172 N. Y. 471.) Under this ruling it is quite likely that the case cannot be tried without the presence of the Perfecta Packing Case Company, even though the defendant makes no motion for an interpleader and does not raise the. objection either by demurrer or .answer, but that is not the question with which we are at present concerned. The insurance company contends' that these parties were insured jointly and that its liability to them is joint and not several. In other words, it claims that the construction of the policy is the same as if the plaintiff and the Perfecta Packing Case Company had been named as the insured and the clause “as interest may appear” had been omitted. We fail to see how the words last quoted are to be given any fdrce and effect unless they be construed as creating. a several liability.
The respondent relies on Besant v. Glens Falls Ins. Co. (72 App. Div. 276). That case does sustain the respondent’s contention and is not distinguishable from the case at bar, but the earlier case of Sullivan v. Spring Garden Ins. Co. (supra) is not considered in the opinion nor are the other cases which we have cited as holding that the liability is several. In these circumstances we do not feel obliged to follow the Besant case, the doctrine of which
It follows, therefore, that the interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, but with leave to the respondent to withdraw demurrer, and answer upon payment of the costs of the appeal and of the demurrer.
Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with •costs, but.with leave to respondent to withdraw demurrer and answer •on payment of costs in this court and in the court below.