Graham v. Phœnix Insurance

24 N.Y. Sup. Ct. 156

• Court: New York Supreme Court
• Decided: February 15, 1879
• Status: Published

Opinion

Barnard, P. J.:

In February, 1876, Margaret E. Jack, an infant of about the age of throe years, was the owner of certain premises in Flatbush, in Kings county. The plaintiff held a mortgage thereon given by a previous owner of the property. ■ On the 25th of February, 1876, the plaintiff procured of the defendant a policy of insurance upon the buildings upon the land in question. The policy insured Margaret E. Jack, as. owner, and William Graham, mortgagee, and the “loss if any was payable to William Graham, mortgagee.” The premises burned down during the life of the policy, .and the preliminary loss papers were made out by William Graham and served upon the company. After very considerable delay the company required preliminary loss papers on the part of the infant. The mother of the infant in March, 1876, was appointed the general guardian of the infant, and she refused to join without the payment of a sum equal to or even greater than the policy in question. The plaintiff made subsequent efforts to have a guardian appointed, who should join in the loss papers, and did obtain from the Supreme Court the appointment of a person or persons who should act for the infant. It is not necessary to detail those efforts; if I am right in the conclusion at which I have arrived in reference to the plaintiff’s papers, I think the plaintiff was primarily insured. He took the contract to himself as mortgagee and to the infant owner. The parties' each had an insurable interest in the same property. If he had the power to take the contract for himself and for the owner, the case is one of joint insurance, and the act of plaintiff was the act of both, enforcing the policy. If the plaintiff’ had no power to take out a policy in the name of the infant, and his act was thereby of no legal effect as to the infant, then it is good as to himself in the absence of fraud or misrepresentation. In such a case he would be the only person insured, and the preliminary loss papers were good for that reason. The question raised by defendant as to the subsequent proceedings, by which the plaintiff sought to have the infant made a joint actor in reference to the loss papers, looses all relevancy and needs no consideration. The question of the payment of the premiums being waived and credit being given to the mortgagee was made one of fact before the jury, and the finding of the jury thereupon must stand. The policy was delivered and the premiums charged to plaintiff. One of the conditions of the policy required the applicant for insurance to make known all facts material to the risk, and a breach of the condition avoided the policy. There was no fraud or misrepresentation claimed; another insurance company had canceled a policy on the property and the owner was three years old. Neither of these facts were spoken of. The jury found that they were not material to the risk, and that the policy was not avoided by reason of the omission. There was evidence produced upon each side. Experts were sworn by defendants that the age of the .owner was a material fact to the risk, but it was proven that tbe infancy of tbe owner did not occasion either a refusal of the risk or an increased premium upon it. The finding of the jury concludes the question. It is not a legal inference that the age of the owner, in the opinion of another company upon the risk, will destroy an insurance under this condition, if the facts are not stated.

The last point we are called'upon to consider is the effect of the pending of a former action. Among the efforts made by plaintiff, to comply with the defendant’s claim that Margaret E. Jack join in the preliminary loss papers, was an action commenced by plaintiff against the infant owner ; the defendant and the guardian of the infant demanding relief that the guardian be compelled to make proofs of loss, and that defendant be compelled to pay the policy thereupon. The complaint was demurred to by defendant, for the reason that no facts sufficient to make a cause against defendant were alleged therein. The court decided in favor of defendant and the judgment was affirmed at General Term. We think this action is not barred by that; it is not between the same parties and is not for the same relief. One action asks for equitable relief and the other for money damages arising from a breach of contract. One asked relief against other persons than the defendant in connection with a claim against the defendant, and this action is against the defendant alone.

Upon the whole case we think the judgment should be affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.