3 Misc. 2d 956 | N.Y. Sup. Ct. | 1956
The defendants move to dismiss the complaint for asserted insufficiency on its face (Rules Civ. Prac. rule 106). The complaint alleges in substance that: The defendants are insurance brokers. They were engaged by their customer, Louis Di Minno, to obtain a policy of insurance on a designated truck crane covering “ All Risk Insurance ”, including coverage of loss by “ upset and/or overturn ”. The defendants procured a policy of insurance from the Century Insurance Company, Ltd., a copy of which policy is annexed to the complaint. Thereafter, Di Minno transferred the truck crane to the plaintiff corporation, which he and his associates had organized, and in return he received the plaintiff’s corporate stock. At the request of the plaintiff and of Di Minno, the defendants caused the policy and Di Minno’s interest therein to be transferred to the plaintiff, and the policy was amended to cover the plaintiff as the named insured. But the defendants failed to have the policy amended to include coverage by “ All Risk Insurance ” and for loss by “ upset and/or overturn ”, which had previously been requested by the plaintiff and Di Minno. Subsequently, and during the life of the policy, the crane was being used by the plaintiff on a construction job, when
The defendants attack the sufficiency of the complaint on two grounds: (1) that the plaintiff fails to allege that, at the time the policy was issued or at the time of the request for its transfer or at the time of the transfer, Di Minno or his assignee, the plaintiff, had an insurable interest in the property involved; (2) that the plaintiff fails to allege that the policy procured by the defendants did not cover the casualty causing the damage to the plaintiff’s property. In my view, neither contention is tenable.
(1) The allegations in the complaint — that the crane was transferred by Di Minno to the plaintiff in return for the latter’s corporate stock, the issuance of a policy on the crane, and the transfer and indorsement of the policy to the plaintiff — are, by fair and reasonable intendment, sufficient, I think, to show that Di Minno had an insurable interest in the property at the time the policy was issued and that the plaintiff had an insurable interest at the time the policy was transferred (cf. Kline Bros. & Co. v. German Union Fire Ins. Co., 147 App. Div. 790, affd. 210 N. Y. 534). But it is true that the complaint does not in haec verba specifically allege that the plaintiff had an insurable interest. Assuming that to be a requisite in an action by the assured against the insurance company, I do not deem the allegation a sine qua non to the sufficiency of the present complaint. This is not an action by the policyholder against the insurance company, but one against the policyholder’s agent for negligently failing to obtain the policy requested. While an insurance company sued on the policy may raise the objection of the want of insurable interest in the claimant, that is not, it seems to me, an issue that can be raised by the assured’s broker in an action such as this. It is not for the agent who negligently fails to perform to impugn his principal’s title. While I have been cited — and I have found — no authoritative precedent on the point, I note that none of the cases relied upon by the moving parties concerns a suit by an allegedly uninsured customer against an allegedly neglectful broker.
The motion to dismiss the complaint is denied, with leave to answer within 20 days after service of a copy of the order with notice of entry. Order signed.