Graham v. Phœnix Insurance

19 N.Y. Sup. Ct. 446

• Court: New York Supreme Court
• Decided: November 15, 1877
• Status: Published

Opinion

Dykman, J.:

This action cannot be maintained in its present aspect. If the plaintiff has any action against Margaret Elliot Jack, it arises from the duty which she owes him to make the proofs of loss of her buildings to the insurance company, to the end that he may collect the insurance money on account of his debt secured by her mortgage. "Whether she owes him this duty need not be decided now in the view we take of the case.

Neither is it necessary for us to determine what, if any, duty is due from the defendant, Ellen Elliot Gleavy to the plaintiff, or what, if any, action can be maintained against her by the plaintiff.

It is entirely clear that the complaint contains no cause of action against the insurance company in conjunction with the other defendants. If any cause of action exists in the plaintiff’s favor against the insurance company, it is one at law to recover the loss by vii’tue of the policy of insurance. If his cause of action is now complete, that is, if he is now situated so as to maintain such action, he can do so, but that must be brought against the insurance company alone.

If he is not now in a condition to bring such an action, and it is necessary to procure something to be done by either or both of the other defendants before he can do so, then that must be procured in an action in which one or both are defendants. The insurance company has no interest in, and cannot be made a party to, such a-* action, and the other defendants have no interest in, and cannot be made a party to, an action to recover on the policy for the loss.

This simple statement is sufficient to show that the two causes of action, or two kinds of relief which the plaintiff wants, do not affect all the parties to this action.

Whether the limitation of time contained in the insurance policy shall be allowed to have effect, may be determined in an action against the insurance company alone.

The order appealed from must be affirmed, with costs and disbursements.

Gilbert, J., concurred ; Barnard, P. J., not acting.

Order sustaining demurrer affirmed, with costs.