Lawrence v. St. Mark's Fire Insurance

43 Barb. 479 | N.Y. Sup. Ct. | 1865

By the Court,

J. F. Barnard, J,

The complaint avers the performance of all the conditions on the part of the insured, and that the defendant declined to pay the loss suffered, - on the specific ground that James Conner, in whose name the policy was effected, did not own the building covered by the policy. This is not denied in the answer and is consequently as to the action admitted. The plaintiff was not bound to affirmatively prove on the trial the service of any preliminary loss papers.

James Conner, by the terms of his lease, agreed to pay the necessary premium of insurance to enable the lessors to keep the premises insured for the benefit of the said lessors, to the amount of five thousand dollars. At the execution of this lease there was a policy on the property in another company. When it expired, Conner asked to change the company, “ that he could get it done cheaper.” He agreed' verbally to keep the property insured for the trustees to the extent of five thousand dollars. He agreed to keep that insurance for the plaintiffs. This agreement made him liable to the plaintiffs for a breach of that agreement, and gave him an insurable interest in the property to that extent. He effected the policy in suit as on “ his” (Conner’s) building, loss, if any, payable to John W. Lawrence, who was the acting trustee for the property. I do not think the word “ his ” in the policy, is a warranty of title to the property. If he had an insurable interest it was his for the purpose of indemnity, to the amount of his interest. He could insure that interest. (17 Wend. 359.) This insurable interest may be shown by paroi to exist, and without the knowledge of the defendants. (Kernochan v. The N. Y. Bowery Fire Ins. Co., 17 N. Y. Rep. 478.) The defendants must indemnify the assured if he in fact have an interest.

[Kings General Teem, February 8, 1865.

Besides, I think the plaintiffs are entitled under all the facts in this case to recover on the policy as insuring them. Conner was bound to pay the premium on «$5000. He agreed to insure the property for the trustees. He obtained this policy “ loss payable to John W. Lawrence.” What is the defendants’ contract? It agrees to pay Conner nothing. It agrees to pay the loss to the plaintiff. The property was in fact insured for the plaintiff. It is a contract with J ames Conner, that in consideration of the premium paid by him, the company would - insure a certain building and pay the loss to the owner.

I think the judgment should be entered with costs, on the verdict.

Lott, J. F. Barnard and Scrugham, Justices.]