O'Neil v. Franklin Fire Insurance

Headnote

O'Neil v. Franklin Fire Ins. Co., 159 App. Div. 313 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 1, 1913, affirming a judgment in favor of defendant, respondent, entered upon a decision of the court at a Trial Term in an action brought by the plaintiff against the defendant Franklin Fire Insurance Company to recover upon items of an insurance policy covering contents of a dwelling. The same policy in a separate item insured the dwelling house and to it was attached a New York standard mortgagee clause making the whole loss payable to defendant Orimmins, mortgagee, the complaint alleging that Orimmins was made a party defendant because he refused to join as a party plaintiff, and further alleging that another action was pending in which defendant Orimmins was the sole plaintiff and the Franklin Fire Insurance Company the sole defendant to recover separately upon the item of insurance covering the dwelling house. . Defendant insurance company made an offer of judgment to plaintiff which was accepted and judgment entered thereupon. Defendant Orimmins served an answer demanding affirmative relief against defendant insurance company, and upon the issues raised by that pleading deemed controverted and defended upon such grounds as might exist a trial was had, the plaintiff not appearing, and upon defendant Orimmins asking for the direction of a nonsuit and the defendant insurance company moving to dismiss, the jury was discharged and a decision rendered by the court in favor of the defendant Orimmins and against the defendant insurance company for the

amount of the item of insurance on the dwelling house, with interest.