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Miller v. Gibbs

108 A.D. 103 Court N.Y. App. Div. English

Delivered by .Chase, J.:

Contents

Majority

p. 103
T. De Witt Miller, as Surviving Executor, etc., of George Rider, Deceased, Respondent, v. A. R. Gibbs, as Receiver of the Sidney Glass Works, a Dissolved Corporation, Appellant, Impleaded with Others, Respondents.

Headnote

Fire insurance—severable where each hind of property is separately valued—insurable interest of both a mortgagor and a mortgagee — the words “ less if any on buildings, payable ” to the mortgagee, construed.
Where fire insurance is secured on different kinds of property, each separately valued, the contract is severable even if one premium is paid and the amount insured is the sum total of the valuations.
The owner of mortgaged property and the mortgagee thereof each have an insurable interest in the property.
A mortgage covered the plant of a manufacturing corporation, both buildings and machinery, and contained a covenant on the part of the mortgagor to keep the buildings insured. The corporation secured policies of fire insurance on the plant, in which the buildings and the machinery were .separately valued. Such policies contained a provision that the “ loss if any on buildings, payable " to the mortgagee “ as his interests may appear.”
p. 104
Held,! that as between the mortgagee and the general creditors of the corporation represented by its receiver, the mortgagee, in the event of the destruction of the insured property by Are, was not entitled to the entire amount of -the insurance, hut only to the insurance on the buildings.
Smith and Chester, JJ., dissented.
Appeal by the defendant, A. R. Gibbs, as receiver of the Sidney Glass Works, a dissolved corporation, from a portion of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of Delaware on the 27th day of May, ( 1904, upon the decision of the court rendered after a . trial at the ■ Delaware Special Term.
On the 7th day of, November, 1891, one Burrows gave to one Angelí a bond, conditioned for the payment of $5,000 and interest, and as collateral security for the payment of said bond lie, gave- a mortgage on certain real property therein specifically described. Following the description of -said real property in said mortgage was a further provision as follows: “ The parties of the first part . also include in said mortgaged premises, all the .tools and implements used in said Glass Works together with the engine, boiler, ■shafting, pulleys, belts and all other machinery of- every kind used ■in or about said factory whether located in the buildings on said ,lands or outside the same, and it is the intention of the parties to this instrument that all the property mentioned in this paragraph is and shall be included in the mortgaged property and be deemed covered by this mortgage.” Said mortgage also contained a covenant by the' mortgagor to keep the- buildings erected and to be erected on the lands described insured against loss or damage by fire by solvent insurers and in an amount approved by the mortgagee and to assign tile policies therefor to the mortgagee, his heirs or assigns: And said covenant also provided that in case of- default .by the mortgagor in effecting such insurance the mortgagee could effect the same and the premium or premiums paid should be a lien on the mortgaged premises. Thereafter such bond and mortgage were duly assigned to the plaintiff’s testator in Ms lifetime and also thereafter the property described in the mortgage was sold to the Sidney Glass Works, but it did, not assume the payment of said bond and mortgage or the performance of the covenants in the bond and mortgage contained. Before the commencement of this'
p. 105
action and in 1901 the Sidney Glass Works was dissolved and the appellant was appointed the receiver of such corporation. In the year 1899 the Sidney Glass Works obtained three policies of insurance upon the property of said Sidney Glass Works; the description of the property insured and the amount of the insurance on each group of property therein described is as follows (the numbers were not in the policies but are placed herein for convenience):
1. “ $600 on the frame building, additions and foundations thereto including furnaces and ovens, occupied for the manufacture of glass ware and known as the main factory building.
2. “ $100 on the machinery, shafting, belting, moulds, lear wagons, tools, patterns, fixtures, factory furniture, forges, bellows and steam and water pipes therein.
3. “ $10.0 on the frame- asbestos roof building, occupied as a mixing house and storage, situate about 100 feet south of the main building.
4. “ $100 on the stock of sand, soda, ash, lime, batch wagons and tools therein.
5. “ $100 - on the frame packing house and office, situate 'about 100 feet east of the main building.
6. “ $100 on frame building and additions occupied as an engine house and for box making, situate south east of the main building.
7. “ $200 on the machinery, shafting, belting, moulds, tools, patterns, fixtures, factory furniture, forges, bellows, steam and water pipes in said engine house and additions.
8. “ $100 on boiler and engine therein.”
The policies were the same in amount and terms and each of said policies contained an indorsement as follows: “ Loss if any on buildings, payable tq the estate of Geo. Rider, mortgagee, as his interests may appear.”
Thereafter and on April 4, 1900, the property described in said policies was destroyed by fire with the exception of one building and its contents, being the building and property described in the 3d and 4th items in said insurance policies. The loss was adjusted at the full amount and the amounts stated in the 1st, 5th and 6th items were paid to the mortgagee. The loss on the 2d, 7th and 8th items, amounting upon the three policies to $1,200, was paid by check to the order of the mortgagee and said receiver, and the
p. 106
same has been collected and deposited by them subject to the order of the court. In the judgment herein it is provided that said amount be paid to the mortgagee to apply on sard mortgage. The receiver. insists that such $1,200 should be paid to liim.as receiver for the benefit of the creditors of the corporation and from the judgment, so far as it adjudges that said amount shall be paid to the mortgagee to apply on the mortgage, this appeal is taken. The 'bond accompanying said mortgage was guaranteed' by certain persons who are defendants and respondents herein. -
George L. Gibbs, for the appellant.
Wagner & Fisher, for the respondent Miller.
James R. Baumes, respondent, in person.
William H. Pierce, respondent, in person.
William Thorp, for the respondents Cartwright and Winegard.
Charles H. Seeley, for respondents Phelps and Simons.

Apart from any agreement relating thereto the. owner of the mortgaged property and the mortgagee each had an insurable interest in, and could have insured the mortgaged property for his individual' benefit. The mortgagee could have taken such. insurance on- any or all of the property covered by the mortgage.- ' At the timé the policies mentioned were given, the owner of the property was not bound -by any personal covenant to insure for the benefit of the mortgagee, and the mortgagee did not. obtain insurance on any of the property either by the authority contained in the mortgage or Otherwise. The rights of the parties must be determined by \khat was actually done by them. It may be well, however, to consider,the covenant to insure contained in the mortgage. It was not a covenant to keep the mortgaged property Or the Sidney Glass. Works insured, but to keep “the buildings erected and to be erected upon the lands ” insured. This covenant followed a. description of the property mortgaged where the “ buildings ” are. recognized by name as distinguished from the other property / contained therein. '

p. 107
In Sunderlin v. Ætna Ins. Co. ( 18 Hun, 522 ) the court, in construing policies of insurance on a “ frame building detached occupied by assured as a tannery ” in force while other insurance obtained by the owner was placed upon such building described by the same language and also included insurance for a specified amount on “ engine, boiler and pumps,” and on “bark mill machinery, shafting and iron pipe,” held : “ The fair construction is that these two policies applied only to the building. Their language is such. They insure the frame building,’ nothing more. Its use is described because it might be important to know the mode of use. But the policies do not even say that they insure the tannery as such. They assure only ‘ the frame building.’ In Bigler v. N. Y. C. Ins. Co. ( 20 Barb. 635 ), cited by defendant, the insurance was on the plaintiff’s ‘ steam saw mill ’ and those words were held to include the machinery. But the language in these policies is different. The parties seem to have had simply the frame building in view and not the engine or machinery.”

The insurance obtained by the Sidney Glass Works separately described the property insured, stating the insurance on each class of property, and therein described what was intended to be included therewith. The policies included an amount separately stated on three buildings ; one of which was the engine house; an amount on the boiler and engine; and an amount separately stated on the contents of each building.

It is settled in this State that where insurance is taken on different kinds of property, each separately valued, the contract is sever-able even if but one premium is paid and the amount insured is the sum total of the valuations. (Fitzgerald v. Atlanta Home Ins. Co., 61 App. Div. 350 ; see S. C., 72 id. 629; affd., 175 N. Y. 494 .) The indorsement on the "policies of “ loss if any on buildings, payable to the estate of Geo. Rider, mortgagee, as his interests may appear,” was apparently satisfactory to the mortgagee. There seems to be little room for construction of the language of such indorsement as it is plain and apparent, and if it is not in accordance with the intention of the parties they have been unfortunate in their choice of language.

The judgment, so far as it directs the payment of the $1,200 to the mortgagee on account of the mortgage indebtedness, should be

p. 108
reversed, with costs, and the judgment should be modified by providing therein in.place of the payment of said $1,200 to the mortgagee that the same be paid to the appellant.

. All concurred, except Smith, J., who is of opinion that the plaintiff is entitled to such part of the insurance as was paid for the loss upon personal property .which-was so annexed to the freehold as to become a part thereof, and Chester, J., dissenting.

Judgment, so far as it directs payment of the $1,200 to the mortgagee on account of the mortgage, indebtedness, is reversed, with costs, and the judgment-modified by providing therein in place of the pay-mént of the said $1,200 to the mortgagee that the same be paid to the appellant.

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