Green v. . Homestead Fire Insurance Co.

82 N.Y. 517, 1880 N.Y. LEXIS 396

• Court: New York Court of Appeals
• Decided: November 16, 1880
• Status: Published

Opinion

Rapallo, J.

The notice tiled in pursuance of the mechanic’s lien law clearly did not effect any change of interest in the property insured.

The only other question presented on this appeal is whether the filing of the notice of lien created an incumbrance in violation of a condition of the policy. The condition alleged to have been violated was that the company should not be liable for loss if, without written consent, on the policy, the property should become incumbered in any way. The policy was issued on the 4th of September, 1876. The notice of lien was filed on the 19th of- September, 1876. The fire occurred October 14, 1876. It is not claimed that the lien was filed by the procurement of the assured. Assuming that it was an incumbrance upon the property, we do not think it was such an incumbrance as was contemplated by the condition; that the condition applied only to incumbrances created by or with the assent of the assured, and to the creation of which he might apply for the consent of the company, and that the true meaning of the condition was that the assured should not incumber the property without first obtaining the written consent of the company.

We have thus construed similar conditions in policies in other cases. (Baley v. Homestead Fire Ins. Co., 80 N. Y. 21.)

The judgment should be affirmed.

All concur.

Judgment affirmed.