2 Sweeny 470 | The Superior Court of New York City | 1870
It is now firmly settled that no transfer of interest will work a forfeiture under the clause contained in a policy, forbidding a transfer of the interest of the assured in the policy, or in the property insured thereby, without the written consent of the company, which does not so entirely deprive the assignor of all insurable interest as to prevent his recovering on the policy for his own benefit, if that clause was not contained in it. To take away the cause of action in one case, and to render void the policy in the other, equally requires a transfer or termination of the entire insurable interest. So long as the insured retains such an interest that he may be a sufferer by the loss, the policy remains valid to protect that interest. (Hitchcock agt. Northwestern Ins. Co., 26 N. Y., 68; Van Deusen agt. Charter Oak Fire and Marine Ins. Co., 1 Robt., 55 ; Fernandez agt. The Great Western Ins. Co., 3 Robt., 458 ; Phelps agt. Gebhard Fire Ins. Co., 9 Bosw., 405.)
After a sale of the property insured, and previous to the assignment of the policy to the purchaser, the effect of the policy as an indemnity becomes suspended, not from any vice in the policy, but from the absence of a subject for it to act upon.
If a fire occurs during this time no recovery can be had against the underwriters, not because the,policy had become void, but because, at the time of the fire, the insured had no goods covered by the policy, and the purchaser had no policy to cover his interest in the goods.
But the moment the interests become again united by the union of the ownership of the goods and the interest in the policy in the same person, the policy again becomes effectual and reattaches to the goods.
And when the assignment of the policy, with the consent of the insurers, is absolute to one who has become the entire owner of the subject of insurance, it becomes a new contract of insurance between the underwriters and the assignee. If the assignment, taken in connection with the policy, plainly transfers the assured’s whole interest, the underwriters’ consent to it is evidently equivalent to their agreement to become directly answerable to the assignee. In such case the proceedings to enforce payment may be in the assignee’s name, and he becomes, to all intents and purposes, the substituted, party to the contract. (Hooper agt The Hudson River Fire Ins. Co., 17 N. Y., 424; Wolfe agt. The Security Fire Ins. Co., 39. N. Y., 51.)
It is true that in the last-named two cases the property insured consisted of a stock of goods kept for sale; and for that reason it may be claimed that the propositions therein laid down should be confined to that particular class of cases, on the ground that it must be considered as the
These remarks dispose of the claim set up by the defendants that, because L. J. Shearman conveyed the property to his brother, the policy became a mere wager policy, and that consequently the renewal of it notwithstanding the acceptance of the payment of the premium, was null and void. The subseqent consent of the defendant's, indorsed upon the
The defendants also claim that, inasmuch as their policy provided that if the property should be sold or transferred * * * or if the policy should be assigned without the consent of the company, to be indorsed thereon, the same should be void, it was necessary for plaintiff to show not only defendants consent to the assignment of the policy, but also their consent to the transfer of the property covered by it, and that they cannot be held liable in the absence of evidence that, in point of fact, they did consent in writing to the transfer of the property. It requires but little argument to demonstrate the hollowness of this claim. The assignment of the policy, in order to be of any benefit to the plaintiff as assignee had to be accompanied with-a transfer to him of the interest of the assignor, in the subject of insurance. Such being the case, the request made to the defendants, to consent to an assignment to plaintiff, was of itself notice to them that plaintiff had acquired, or was about to acquire, an interest in the insured property. Besides that they had actual notice of the fact that the said property had been conveyed to plaintiff. Their policy contained but one printed blank to be executed by the assignor to the assignee in case of an
The only remaining point urged by the defendant is that there was a change of possession of the property, contrary to the terms of the policy, which provided that if any change should take place in title os possession, whether by legal process or judicial .decree, or voluntary transfer or conveyance, without the consent of the company indorsed thereon, the policy should be void. The evidence shows that after the conveyance of the property to the plaintiff) and up to the time of the fire, L. J. Shearman remained in possession as tenant of the plaintiff, and that Mr. McGreal, the city marshal, lived with'him; that shortly before the fire, L. J. Shearman took his wife and children to Brattléboro’, Vermont, for their health ; that before leaving Wilmington, N. G., said Shearman requested one Mr. Brown to occupy part of the house and take care of it, together with Mr.MeGreal, until his (the said Shearman’s) return, that Brown complied with such request, and that at the time of the fire L. J. Shearman was on board of a steamer off Hatteras on his way b'ack to Wilmington. It also appears that the defenants were notified, by way of precaution, of the intention of L. J. Sherman to come North on a short visit, and to leave Brown in charge of the house. These facts fall far short from establishing a forfeiture of the policy. Sh'earman’s brief temporary absence did not constitute a change of possession in any sense which the policy could attach to that expression. Brown was a mere servant or employe, taking care of the' property for Shearman, and his possession was, in judgment of law, the possession of his employer.
The judgment should be affirmed, with costs.
Barbour, C. J., and Spencer, J., concurred.