Traders' Insurance v. Robert

9 Wend. 404 | N.Y. Sup. Ct. | 1832

By the Court,

Savage, Ch. J.

The only difficulty in the case grows out of the fact that the policies on which tins suit was brought, were assigned to the mortgagee of the premises, and that the mortgagor subsequently insured his remain-mg interest in another office without giving notice to the de» fondants. There is no doubt that persons owning different interests in the same subject, may insure their several interests. A mortgagor and mortgagee may each insure the same building, and it seems their particular interest need not be described in the policy; it may be described as the property of the insured. Phil. on Ins. 41, 64. A mortgagor or mortgagee need not disclose his qualified or partial interest. Phil. on Ins. 94, and cases cited; but a bottomry interest must be insured eo nomine. 1 Johns. R. 394.

A policy of insurance is not assignable at law, though it is in equity; and there are cases where the charter of the company makes provision that an action may be brought in the name of the assignee. This, however, is not one of those cases, and therefore the mortgagee had no mode of enforcing his rights but in the name of the mortgagor, in whose name the policy had been taken previous to the assignment The assignment was made with the consent of the company, of course they had notice of itj and though courts of law cannot entertain a suit in the name of an assignee of an instrument not negotiable, yet they will always protect the rights of such assignee. Had the nominal plaintiff in this case executed a release to the insurance company, it would have had no effect upon the rights of the assignee ; and if he could not directly discharge the right of action which he had assigned, surely he cannot do it indirectly. The fact, therefore, of his having effected a subsequent insurance upon the same premises, can have no influence upon the rights of the real plaintiff in this suit. After the assignment of the policy, Robert, in whose name it was originally taken, had no interest in it, and this was known to the defendants; but the suit must be prosecuted in his name for the technical reason that a suit cannot be brought in the name of the assignee, the only person interested. When a suit is brought therefore after assignment, there is no necessity to aver that it is brought by the direction of the assignee and for his benefit; it follows from the fact of assignment, of which the defendants had notice, that the suit can be brought by no other person. As between the parties to this suit, it is an action brought by Francis Bolton agajnst Trader’s Insurance Company. Could the su^ 'lave been brought in his name, the objection that the mortgagor had also insured his interest, would not gravely have been made, as a violation of the condition of the policy which had been assigned. The rights of the parties are the same as if the policy declared on had been given to Francis Bolton after the mortgage was executed to him. Suppose it to have been in form so executed, is a policy effected by the mortgagorupon a separate interest tobe construed a violation of the condition of the mortgagee’s policy ? It cannot be seriously contended, and yet the question presented is precisely the same, because, under the circumstances of this case, the assignee, Bolton, is entitled to the same protection from this court as if the policy stood in his name.

The judgment of the superior court must be affirmed, with single costs.