9 Paige Ch. 568 | New York Court of Chancery | 1842
I think the vice chancellor erred in supposing the verdict of the jury upon the assessment was conclusive evidence, between these parties, as to the actual amount of the loss which the petitioners had sustained. As between the petitioners and the city corporation it was conclusive. And as the insurance company could have no claim against the city of New-York except through the petitioners, and as being subrogated to their rights, it would be conclusive as between the corporation and that company. But the decision of the supreme court in the case of The City Fire Insurance Co. v. Corlies, (21 Wend. Rep. 367,)
Again i the proceedings against the corporation being for the benefit of the insurers as well as of the assured, the latter were entitled to a deduction from the amount recovered from the city corporation on account of the necessary costs and expenses of litigating that assessment through all the courts; and the loss of interest, if any, which had been sustained without any fault on the part of the petitioners.
The claim against the underwriters must therefore be adjusted by ascertaining the whole extent of the loss, at the cash value of the buildings and goods at the time of the destruction thereof, including the interest thereon until the time when the money was recovered under the assessment, and then deducting therefrom the amount received as the proceeds of the assessment; and charging the insurers with a proportionate share of the costs and counsel fees of that litigation in proportion to the benefit it was to them in limiting their liability under the policies. But in such a manner as in no event to charge the insurers with more than the amount of the two policies, and the interest