37 N.Y.S. 811 | N.Y. App. Div. | 1896
This action was properly brought by the administrator and administratrix of the deceased. They were his “ legal representatives” within the meaning of the law. The defendant claims that they were only his legal representatives as to the personalty, and that the heirs are his legal representatives as to the real estate.: Upon this it contends that two actions should have been brought, one by the heirs for damage to the real estate and one by the plaintiffs for
The contract as to both real estate and personalty was with William H. Lawrence. The plaintiffs are his successors. As such, the defendant’s contract obligation runs to them directly. They can maintain the action because of this direct contract obligation.' They so maintain it in their own right as to the personalty, in the right of the heirs as to the real estate. (Wyman v. Wyman, 28 N. Y. 256.) They may be regarded, as was said in the latter case, as parties to whom, as trustees of an express trust, the right to sue in their own name is preserved under the Code. Thus the contract right and the insurable interest are interwoven.
What equity may require the plaintiffs to do with the recovery is another question. The heirs can take care of themselves. What the defendant must do is to comply with its contract, namely, pay the loss to the persons to whom its legal obligation thereunder runs.. .
The defendant makes the further point that an appraisal of the damage occasioned by the fire was a condition precedent to the right of the insured to maintain an action to recover for the loss. The policy provided that the loss or damage should be ascertained or ■ estimated according to the actual cash value of the property at the time the loss occurred, and that “said ascertainment or estimate” should be made by the insured and the company or, if they differed, by appraisers. Provision is subsequently made for the selection of appraisers -and an umpire. There is also the" further provision that “ the loss shall not become payable until sixty days after the notice,
The claim that the action was prematurely brought is without merit, and the judgment should be affirmed, with costs.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.