106 Misc. 91 | N.Y. Sup. Ct. | 1919
The action has been brought to foreclose a mortgage, fourth as to date and as to time of record, upon certain property on Weaver street, in the city of Schenectady, N. Y., and for a decree that the said mortgage is prior to three other mortgages, previously given and now held by the defendant insurance companies. The facts are as follows: On June 5, 1899, plaintiff gave his bond for $1,000 to A. J. and T. M. Gilchrist, with a mortgage on said property, in the same sum, as ’ collateral. The mortgage was recorded on June 8, 1899, in Book 197 of Mortgages at page 42.. On March 15, 1902, he gave his bond for $800 to the Gilchrists, with a mortgage on the property, in the same sum, as collateral. That mortgage was recorded on April 3, 1902, in Book 118 of Mortgages at page 166. On August 10, 1903, he gave his bond for $800 to the Gilchrists, with a mortgage on the property, in the same sum, as collateral. And, that mortgage was recorded on that day in Book 136 of Mortgages at page 33. His wife joined in each mortgage. Later, the Gilchrists died and defendant Featherstonhaugh was appointed executor of the will of each. On January 31, 1913, plaintiff sold and conveyed the property to one Frank De Feo. He gave back his bond for $1,836, with a purchase money mortgage for the same sum, as collateral. That was recorded on February 3, 1913, in Book 197 of Mortgages at page 2 and is the mortgage in suit. On July 31, 1914, De Feo sold and conveyed the property to defendant Antonetta De Marco. The deed was recorded on September 11,1914, in Book 237 of Deeds at page 225. There were two dwellings on the lot, one in front and the other in the rear. On May 14, 1916, Mrs. De Marco insured the same in the Detroit Company for $2,000 for three years. On July 14,1916, she insured same in the St. Paul Company for $500 for
1. Each policy insured the building while “ occupied as a dwelling ” and provided that it should be void if the building, whether intended for occupancy by owner or tenant, should be or become vacant or unoccupied and so remain for ten days. It is conceded that it was vacant at the time of the fire. It is disputed that it was for ten days before. The burden of proof on the question was on the companies. Van Valkenburgh v. Americam Pop. Life Ins. Co., 70 N. Y. 605; Mead v. American Fire Ins. Co., 13 App. Div. 476, 480. They joined in an answer and alleged, among other things, that it was vacant for more than ten days before the fire and that the policies thereby became void as to the owner, Mrs. De Marco. She made and served a cross answer, by which, in addition to other denials, she denied the said allegation as to vacancy and alleged “ that the agent of the said companies had full knowledge prior to the time of .said fire that the said building was vacant and upon information and belief that the said defendant companies neglected to make out a written endorsement required by the said policy and deliver the same to the mortgagee, in whose possession the said policy was, which failure was unknown to this answering defendant, and that the said defendant companies are
2. Each policy provides that “ no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity * * * unless commenced within twelve months next after the fire.” The building was destroyed on March 23,1917. Thereupon and on July 17,1917, plaintiff brought actions on the policies, and demanded, in effect, that the insurance be applied on the several mortgages as far as it would go. An action by Mrs. De Marco would necessarily have required the same judgment. After paying the amount due on the Gilchrist mortgages and taking assignments thereof and after tendering to plaintiff what was left of the insurance, the companies answered and claimed subrogation, but they did not serve upon Mrs. De Marco and she did not appear or answer. After that and on February 8,1918, plaintiff commenced this action. Defendant did not answer until April 4, 1918. That was more than a month after the expiration of the time to answer and more than twelve months after the fire. They served on Mrs. De Marco on that day and she made and
3. Each policy contains the standard mortgagee clause, so far as material, as follows: “ Loss or damage, if any, under this policy, shall be first payable to Estate of A. J. & T. M. Gilchrist, first mortgagee, to the amount of their claim, and in excess thereof to Boceo Perretta, second mortgagee, * * * as interest may appear, and this insurance as to the interest of the mortgagee (or trustee) only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property * * *. Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may, at its option, pay to the mortgagee (or trustee) the whole principal due or- to grow due on the mortgage with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of their claim.” The property was encumbered by four mortgages. The first three belonged to the estates of A. J. & T. M. Gilchrist and amounted, at the time that the companies paid, to the sum of $2,487.60. The fourth belonged to plaintiff. The sum of $1,736 with interest from February 1, 1917, is due thereon. The loss by the fire amounted to $3,720. The insurance was for $2,500.
Judgment accordingly.