1 Sweeny 12 | The Superior Court of New York City | 1869
The only issue in this case presented by the pleadings was upon the nature and extent of the indebtedness for which the policies of insurance were intended as a security. The plaintiff claimed, and so alleged in his complaint, that at the time of the insurance the defendant was in his employment, and that the loss was made payable to him, as expressed in the policies, in order to secure him for any indebtedness that the plaintiff might owe him therefor, and for no other purpose whatever ; and that it was then
These allegations, of the nature of the intended to be secured, as well as the arrangement between the parties in respect thereto, were not denied in the answer. The only allegations in the complaint negatived in the answer being those averring payment, or offer of payment, of the alleged indebtedness. So that the case, upon the pleadings, was narrowed to the single issue of payment, or offer of payment, of any indebtedness of the plaintiff to the defendant, growing out of the employment of the latter by the former.
On the trial it was attempted to show, on the part of the defendant, that the insurance policies were intended to secure the payment of a certain chattel mortgage, given to the defendant by one Fisher, upon two copper worms, used in the distillation of rosin oil, to secure the payment of §1,300 and upwards ; and some evidence was furnished that the mortgage debt had not been paid. But the court, on. motion, struck out all the evidence of an agreement on the part of the plaintiff to pay the debt of Fisher,—probably on the ground that no such agreement had been set up in the answer ; and also that the agreement set forth in the complaint was admitted by the answer.
I have examined the evidence furnished by the defendant, and cannot find any that is pertinent to the only issue presented by the pleadings. All the evidence relates to the non-payment of the debt due from Fisher, and was clearly inadmissible. As all the evidence showing or tending to show that it was agreed or intended to
Under this view of the case, there was nothing to go . to the jury. The debt agreed to be secured by the transfer of the policies was admitted, and the evidence of the payment of such debt was not contradicted by the defendant, although he proved in general terms that the plaintiff had not paid him. Yet it is so evident that he referred to the Fisher debt that it may safely be said that the plaintiff’s evidence was undisputed. But were it otherwise, and the evidence on the subject of payment, or on the other subject, of partnership between the plaintiff and Fisher, were conflicting, the defendant should have called the attention of the court to it by a request to submit such questions to the jury ; and it is too late to raise the objection now, that the case should have gone to them upon any of the conflicting evidence in the case.
The only remaining question is, whether the plaintiff can maintain an action for the conversion of the policies, and that question was properly raised, I think, by the motion to dismiss the complaint.
The policies were taken in the name of the plaintiff, and contained a clause making the “loss, if any, payable to the defendant.” Such words operated to give the defendant the same rights and interests in the policy which he would have had if, without such words, the policies had been assigned to him with the assent of the insurers (Grosvenor v. Atlantic Fire Ins. Co., 5 Duer, 517 ; S. C., 17 N. Y., 395 ; Ennis v. Harmony Fire Ins. Co., 3 Bosw., 516). There cannot be a doubt that the assignee, before payment of the debt, could maintain an action upon the policy for a loss to the subject insured. Before the Code, an assignee could not, in this State, have brought an action in his own name (Jessel v. Williamsburgh Ins. Co., 3 Hill, 88). It was otherwise in
In the case of Roberts v. Traders’ Ins. Co. (17 Wend., 631), the question was whether, after judgment in favor of an assignee against the insurers, and payment of the mortgage debt by the assignor, he was entitled to collect the judgment; and the court said (p. 638) that the assignee took only a collateral interest in the policy, liable to be divested whenever the mortgage was paid, and that the payment of the mortgage had the effect to bring back to the mortgagor and assignor of the policy the interest which he had assigned, and, of course, the interest in the judgment which had been obtained upon the policy.
The cases cited establish, that upon payment of the debt, the assignor is restored to his interests, and may maintain an action upon the policies, or to compel a reassignment to himself, if that be necessary for the purpose of bringing suit.
That an action can be maintained for the conversion óf a chose in action which has been pledged as a security for a debt, is now well settled (Campbell v. Parker, 9 Bosw., 322; Decker v. Matthews, 12 N. Y. [2 Kern.], 313). An action to redeem is not the only remedy ; and where the pledgee has wrongfully disposed of the pledged property, so as to put it out of his power to deliver it, or where, upon payment of the debt for which it
The evidence in this case of the payment of the debt for which the insurance policies were pledged, and of the demand and refusal to return them to the plaintiff, was undisputed, leaving, therefore, nothing for the jury.
The direction to find for the plaintiff was correct, and the judgment should be affirmed.
Jones and Fithian, JJ., concurred.
Judgment affirmed.