78 N.Y.S. 620 | N.Y. App. Div. | 1902
The plaintiffs were, prior to the 29th of October, 1898, the owners of two lots of land upon which there were two dwelling houses. known as Nos. 245 and 247 West One Hundred and Twenty-fourth street. On that day the' defendant issued and delivered to the plaintiffs a policy of insurance whereby it insured the plaintiffs for a term of one year against all direct loss or damage by fire to the said premises to the amount of $6,000. That policy seems to have been in the usual form, and by its terms was to be void “ if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard)
It also appears that on the 8th-day of March, 1899, Ella A. Tiemann, individually and as special guardian of Hugh P. Tiemann and the other plaintiffs, entered into a written contract with one Wechsler whereby she agreed to sell to the said. Wechsler the lots in question with the buildings thereon for the sum of $55,000, the deed to be delivered on the 5th day of April, 1899, This agreement contained the following provision : “ Provided, however, that this agreement is executed and delivered upon the express condition that the same shall be approved by the Supreme Court of the State of New York in certain proceedings therein pending for leave to sell real estate of Edith W. Tiemann and Hugh P. Tiemann, infants, and should said court withhold its approval of this agreement, then the same and the covenants therein contained oh the part of the parties of the first part thereto shall cease, determine and be of no effect.” After the execution of the contract and on the 29th day of March, 1899, the buildings insured were directly damaged by fire in amounts aggregating $1,050, and notice of this fire and due proof of loss was given by the plaintiffs to the defendant within the time fixed by the policy. The amount of the said loss was duly ascertained under the policy, and on the- 2d day of ’April, 1899, the plaintiffs conveyed the land upon which the remains of said houses stood to Josephine Morgenthau for the consideration named in said contract, which was received by the plaintiffs, and the said grantee immediately thereupon took possession of said premises. This deed was recorded in the office of the register of the city of New York on April 4, 1899. It was not stated, however, whether the contract was assigned to the grantee in this deed, or whether the conveyance was made in pursuance thereof. The question submitted is whether the defendant is liable ■ to the plaintiffs for the amount of this loss under this policy.
The defendant advances two propositions which it claims are fatal to the right of the plaintiffs to recover. The first is that the policy is void under the clausé which' provides that the same shall be void “ if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance.”- This depends upon the question as to whether the execution of the con
It is claimed on behalf of the defendant that these cases do not apply because, although there was no change in the title" or possession of the property insured, there was a change of interest upon the execution of this contract, but I can see no distinction between the interest and title of a person in real property of which he is owner. The owner of real property has title to it and the interest in it is the title that he has. There can be no change of interest in the property, except by a change of title, as it is by a conveyance of the property that the interest of the owner is changed. If the execution of a contract of sale is not a change of title, it would seem to follow that it was not a change of interest. Notwithstanding the contract of sale, the plaintiffs remained the owners
The second objection taken by the defendant is that as a policy of insurance is a mere contract of indemnity, to entitle the insured to recover there must be proof that the insured has suffered loss by reason of the peril insured against, and that if, as in this case, the plaintiffs had contracted to sell the property and subsequently after the fire sold it for the amount they had contracted for, the insured suffered no damage by the fire and was entitled to recover nominal damages only. The policy insured the plaintiffs against “ all direct loss or damage by fire to the amount of Six thousand dollars, to the following described property, namely,” two dwelling houses, etc. The submission expressly states that thereafter and on the 29th day of March, 1899, the said buildings were directly damaged by fire in amounts aggregating $1,050. There had, therefore, been according to the submission a direct damage to those buildings owned by the insured in the amount sought to be recovered. To that extent the buildings were damaged and to that extent the interest of the insured in the buildings was depreciated. While it is quite true that if this contract had been carried out and the plaintiffs had received the full price to be paid for the property, notwithstanding the fire, they would have received the same amount whether the fire had taken place or not; but it has never been held in this State that such injury to specific property insured is not a damage to the owner,' because the owner subsequently receives for it the same amount that he was willing to take or had agreed to take for the property prior to the fire; and all of the cases in which this question has been discussed, some of which have been referred to, sustain a recovery, notwithstanding the fact that there was a contract for a sale of the property in existence at the time of the fire. The plaintiffs were the owners of the property insured. The defendant
The fact that the plaintiffs’ property was damaged by a risk within the terms of the policy was at the time of the fire a direct' damage to the plaintiffs which the defendant had insured. The fact that the plaintiffs had offered to sell the property at the price which they subsequently obtained, notwithstanding the impairment of its value by the fire, would not release the defendant from liability, and' I cannot see that the execution of this contract would have that effect.
I think, therefore, that when these buildings were damaged the express terms of the policy applied, and by it the insurance company became liable to the plaintiffs to the amount that the buildings were damaged irrespective of the subsequent disposition that they were able to make of the damaged buildings.
It follows that the plaintiffs are entitled to a judgment as prayed for in the submission, with costs.
Patterson, O’Brien, Hatch and Laughlin, JJ., concurred.
Judgment ordered for plaintiffs, with costs.