132 N.Y.S. 181 | N.Y. App. Div. | 1911
This action was brought to recover the loss under a policy of fire insurance. The plaintiff is a foreign corporation organized under the laws of the State of Florida and the defendant is a foreign corporation organized under the laws of the State of Maryland and engaged in the business of fire insurance in the city, county and State of New York.
The complaint alleges in the 3d paragraph that on March 8, 1909, at the city of New York the defendant made and entered into a written contract of insurance with the plaintiff whereby the defendant for a valuable consideration did insure the plaintiff as now or may be hereafter constituted “ for the term of one year from the 8th day of March, 1909, at noon, to the 8th day of March, 1910, at noon, against all direct loss or damage by fire, except as hereinafter provided for, to an amount not exceeding Fifteen hundred ($1500) dollars, on a stock of merchandise consisting of leaf tobacco, bark, burlap,, matting and other material used in baling tobacco, their own, or held by them in trust or on commission, or sold but not delivered or removed, or for which they may be liable in case of loss or damage to same ” while contained in a certain frame building in the State of Florida; and in the 4th paragraph, that during the term of said policy and on or about the 19th day of March, 1909, “ the said property so insured as aforesaid by said defendant under and by virtue of said contract of insurance, and
The questions presented on this appeal are (1) whether the complaint alleged an insurable interest in the property
The “said property” mentioned related to the property described in the 3d paragraph of the complaint, and that was there alleged to be the property owned by the plaintiff of in which the plaintiff had an insurable interest. Neither the 3d nor 4th paragraph of the complaint spoke of property that was not property of the plaintiff or in which it had no insurable interest. The property as described in both of these paragraphs of the complaint was property in which the plaintiff had an insurable interest and the allegations of the complaint are that the defendant by its contract insured the property in which the plaintiff had an insurable interest and that said property, namely, the property in which the plaintiff had an insurable interest, had been totally destroyed by fire. This by fair intendment was ah allegation that the property that was insured and which was destroyed by fire was property which was covered by the policy of insurance and in which the plaintiff had an insurable interest within the terms of the policy.
It is now established in this State that the complaint may be sustained if from its allegations by reasonable and fair intendment the facts necessary to constitute a cause of action are alleged (Marie v. Garrison, 83 N. Y. 14; Flynn v. Brooklyn
On the second point I do not think on this evidence that the plaintiff was doing business within this State within section 15 of the General Corporation Law. There was an office in this State used by the president of the company, but at the time this contract was made the company itself did no business here. fIts property was in the State of Florida and there it transacted its general business. So far as appears it made no contracts in this State, except that it here obtained insurance upon its property in Florida; and whatever books the company had kept here had been sent to Florida prior to the making of the contract in question. Doing business within the meaning of section 15 of the General Corporation Law relates to the ordinary business which the corporation was organized to do, and has no relation to the incidental contract of a foreign corporation with a domestic corporation such as the insuring of its property. (Cummer Lumber Co. v. Associated Mfrs.’ Ins. Co., 67 App. Div. 151; affd., 173 N. Y. 633; Union Trust Co. v. Sickels, 125 App. Div. 105; Penn Collieries Co. v. McKeever, 183 N. Y. 98.)
■ My conclusion, therefore, is that the court below correctly refused the defendant’s motion to dismiss the complaint or direct a verdict in its favor; that the defendant was clearly liable under its policy of insurance, and that the judgment should be affirmed, with costs.
Clarke, Miller and Dowling, JJ., concurred; Scott, J., dissented.
Judgment affirmed, with costs.