87 N.Y.S. 525 | N.Y. App. Div. | 1904
On the 20th of July, 1899, the Owl’s Head Hotel Company, a New York corporation, procured from the defendant the Guardian Fire and Life Assurance Company (Limited), a foreign corporation, a policy of fire insurance in and by which it insured certain prop
At the trial, after the plaintiff and MacPherson had rested, the complaint, in so far as it related to the latter, was dismissed, upon the ground, as appears from the opinion of the trial justice, that the “ court has no jurisdiction over his cause of action, however asserted, nor can it acquire jurisdiction by indirection, or by any device of pleading, practice or procedure.” Exception was duly taken to this ruling by both MacPherson and the plaintiff. The trial court, however, refused to dismiss the complaint against the insurance company, holding as the case then stood, a question of fact was presented for the jury and that the action could be continued by the plaintiff to recover the difference between- the amount which had been proved to be due MacPherson and the amount of the policy. The action was then continued and at the close of the whole case a verdict was directed for the insurance company, upon the ground that the evidence established a violation by the plaintiff of the terms of the policy which rendered it void, to which an exception was taken by the plainfiff. Judgment was thereafter entered, from which the plaintiff and MacPherson have appealed.
The judgment appealed from, unless erroneous as to the plaintiff, is not as to the appellant MacPherson; in other words, unless the plaintiff had a policy of insurance which he could enforce against the insurance company, then a mortgagee of his assignor could not enforce a provision inserted therein for his benefit, and if a verdict were properly directed as to the plaintiff, then it necessarily follows the judgment could not have injured MacPherson.
The appeal of the plaintiff, therefore, will be first considered. The policy contained a provision that it would be void if at the
The foregoing is a summary of all the evidence bearing upon the question of agency, and upon this the trial court held, as a matter
This brings us to the consideration of the remaining question, and that is, whether the courts erred in dismissing the action as to the defendant MacPherson. The policy, as already indicated, provided that the loss, if any, should be payable to one Foster, agent for the mortgagee, as his interest might appear, and it was conceded upon the trial that the defendant MacPherson had succeeded to all the-rights and interest in the policy which Foster had at the time the fire occurred. The defendant MacPherson resided in Canada. The respondent was a foreign corporation, authorized, however, to do business in this State. The policy was issued at its office in Montreal and the property insured was located in Canada. The learned trial justice was of the opinion that the court did not have jurisdiction of the subject-matter of the action so far as MacPherson was concerned, he and the respondent being non-residents; that if MacPherson, as mortgagee, had instituted the action in this State to assert his rights under the policy, the court would not have had jurisdiction and that jurisdiction could not be obtained by “indirection, or by any device of pleading, practice or procedure.” This, to me, seems to be ah erroneous conception as to the rights of the parties. The plaintiff was a resident of the State and his assignor was a domestic corporation. He was, therefore, entitled to bring the action, and it was just as much for his interest as for that of the defendant MacPherson to have the rights of all of the parties determined, to the end that the mortgage referred to might be satisfied. Not only this, but in an action by the plaintiff to enforce the policy, MacPherson was a necessary party (Kent v. Ætna Ins. Co., 84 App. Div. 428; Ennis v. Harmony Fire Ins. Co., 3 Bosw. 516), and with his consent could have joined with the plaintiff in bringing it, but having refused to do that he was properly made a defendant. ( Winne v. Niagara Fire Ins. Co., 91 N. Y. 185 ; Besant v. Glens Falls Ins. Co., 72 App. Div.276:) The fact that MacPherson was a non-resident and the respondent a foreign corporation is of no importance, inasmuch as the contract was made with plaintiff’s assignor, a resident of this State, arid the plaintiff, as its repre
It follows, therefore, that the judgment appealed from must be reversed and a new trial ordered, with costs to each appellant to abide the event. "
Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred. .
Judgment reversed, new trial ordered, costs to each appellant to abide event.