174 A.D. 371 | N.Y. App. Div. | 1916
This is an action on an insurance policy to recover for a fire loss. The policy was issued by the defendant to the plaintiff on the 6th day of February, 1913, and by its provisions the defendant insured the plaintiff against loss by fire during the
“ I acknowledge the receipt of one hundred dollars in two payments of fifty dollars to date.”
The construction of the houseboat was commenced prior to the issuance of the policy, and it was nearly completed at the time of the fire; but was still in the possession of the plaintiff in his boat-building shop, and had not been delivered to Hambrecht. Without returning or rejecting the informal statement which was delivered to the defendant by the plaintiff on the 3d day of October, 1913, as already stated, or referring thereto, the general adjuster of the defendant, Mr. Nichols, on the 16th day of October, 1913, wrote the plaintiff, as follows: “Referring to loss by fire of recent date to property described in Policy No. 2457663 issued to you by this Company, we desire to say that information comes to us to the effect that prior to the issue of our policy you ceased to be and never thereafter became the sole and unconditional owner of the property in said policy described.
“ It is not the wish of this Company to act or refrain from acting on misinformation and if it appears to you that we have been misinformed, we shall be glad to be set right by you.
“Assuming, however, in the absence of information to the contrary, that the facts are as stated to us, we are taking no steps looking to an adjustment.”
Thereupon the plaintiff employed one Freeman, an attorney, who called upon Nichols three or four days after the sixteenth of October; and according to his testimony, was informed by Nichols that the company had a sworn statement from a man who claimed to own part of the boat that was burned, and for
The learned trial court left it to the jury to determine whether or not the defendant’s letter of October sixteenth in the light of the attending circumstances, was a denial of liability, and instructed them that if it was, it constituted a waiver of a compliance with the policy with respect to proof of loss, for the reason that the interest in the property claimed by Hambrecht did not affect the plaintiff’s right of recovery; and at the request of the attorney for the defendant instructed them that if it was not a denial of liability there could be no recovery.
The evidence showed that prior to the fire Hambrecht had paid the plaintiff $500 on account of the construction of the houseboat. It is quite clear, I think, that notwithstanding the agreement between the plaintiff and Hambrecht for the construction of the houseboat, the plaintiff remained the unconditional and sole owner of the property within the provision of the policy on that subject. It is well settled that such a provision with respect to ownership relates to the quality of the title of the insured, and not to the question of liens or incumbrances. (Browning v. Home Ins. Co., 71 N. Y. 508; Wood v. American Fire Ins. Co., 149 id. 382; Haight v. Continental Ins. Co., 92 id. 51. See, also, American Artistic Gold Stamping Co. v. Glens Falls Ins. Co., Misc. Rep. 114.) It is perfectly plain that no title to the boat-building shop, or to the material used or to be used in the construction of the houseboat, passed to Hambrecht under the agreement between him and the plaintiff; and, therefore, the plaintiff remained the owner of the property at the time the policy was issued. The only incumbrance which, by the terms of the policy, would
It follows that the judgment and order should be affirmed, with costs.
Clarke, P. J., Scott, Smith and Page, JJ., concurred.
Judgment and order affirmed, with costs.