232 A.D. 354 | N.Y. App. Div. | 1931
The facts are undisputed. In November, 1929, the plaintiff made a real estate exchange with one Bishop. They agreed to exchange insurance policies also. Bishop informed the plaintiff that there were only three policies on the premises purchased by the plaintiff and these policies, containing the usual mortgage clause, were handed to the plaintiff. At no time did Bishop mention to the plaintiff the existence of a further policy in the Glens Falls Insurance Company and another policy in the Standard Insurance Company which had been issued in Bishop’s name, one of which was in the possession of the defendant Nina Vrooman, first mortgagee, and the other in the possession of the defendant Charles Buhrmaster, second mortgagee, and each of which contained the usual mortgage clause providing for payments to the mortgagees, “ as interest may appear ” and for subrogation of the insurance company to the rights of the mortgagees to the extent of such payment. These two policies continued in the possession of the mortgagees until after a fire totally destroyed the property on February 1, 1930, and the plaintiff had no knowledge of their existence until after the fire. Shortly after the exchange of the properties the plaintiff conferred with the insurance agent who had issued two of the policies handed to him by Bishop. The agent informed him that one of the policies was void, transferred the other policy for $1,000 to the plaintiff by indorsement, and wrote an additional policy of $2,700 to the plaintiff on the real estate with mortgage clause attached and covering the plaintiff’s personal property to the extent of $2,000. The third policy handed to the plaintiff by Bishop, for $800, was likewise transferred to the plaintiff by indorsement. This made total insurance issued in the name of the plaintiff of $4,500 on the real estate, and $2,000 on the per
The defendant insurance companies contend that the policies of the Glens Falls Insurance Company of $2,000 on the buildings and the Standard Insurance Company of $1,000 on the buildings, issued to the previous owner of the property and never indorsed over to the plaintiff and the companies not notified of the change of ownership and the existence of which was unknown to the plaintiff until after the fire, should be considered as raising the total insurance to $7,500, and that, therefore, the defendant insurance companies should pay only a proportionate part of the loss based upon the alleged larger coverage.
The provision of all the policies upon which this contention is based reads as follows: “ This company shall not be hable for a greater proportion of any loss or damage than the amount hereby insured shall bear to the whole insurance covering the property, whether valid or not, and whether collectible or not.” Another provision of each policy is that the entire policy shall be void, unless otherwise provided by agreement in writing added thereto, “ if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance.” The mortgage clause attached to all of the policies contained a provision to the effect that the policy should be void even as to the mortgage^ unless the mortgagee “ shall notify this company of any change of ownership ” and also provided for subrogation of the insurance company to the right of the mortgagee to the extent of any payment to the mortgagee.
It is the contention of the plaintiff that the policies of the Glens Falls Insurance Company and Standard Insurance Company are (1) void as to the plaintiff because they were never indorsed over to him and no relationship of any kind exists between him and
The real question in the case seems to resolve itself into this: Does the phrase “ the whole insurance covering the property,” relate only to insurance in favor of the same assured, on the same interest? There may be “ as many several insurances upon the same property as there are separate interests.” (DeWitt v. Agricultural Ins. Co., 157 N. Y. 353, 360.) An insurable interest is vested in the vendor, the vendee, the mortgagor or the mortgagee and others having a separate interest and each may insure his own distinct insurable interest. The thing insured is not the property described, but the interest or estate of the insured therein. (Traders’ Ins. Co. v. Robert, 9 Wend. 404; Ætna Fire Ins. Co. v. Tyler, 16 id. 385; Mutual Safety Ins. Co. v. Hone, 2 N. Y. 235; Lowell Mfg. Co. v. Safeguard Fire Ins. Co., 88 id. 591, 597; Home Ins. Co. of New York v. Koob, 113 Ky. 360; 58 L. R. A. 58, 60.) “ Double insurance * * * is where two or more insurances are made in favor of the same assured, on the same interest, in the same subject, against the same risks.” (1 Phillips Ins. [5th ed.] § 359.) “ Other insurance ” must be on the same interest, and insurance obtained by a third person upon another distinct insurable interest does not constitute “ other insurance ” within the meaning of an apportionment clause. (6 Cooley Briefs on Ins. [2d ed.] p. 5125.) As stated in Ruling Case Law, the phrase “ any other insurance on the property insured, made prior or subsequent to the policy,” as used in a pro rata liability clause, “ applies only to cases where
The judgments should be affirmed, with costs of one appeal.
All concur.
Judgments affirmed, with costs in one action.