Brown v. German American Insurance — 10 N.Y. St. Rep. 412

Majority

p. 412

Henry C. Brown v. German American Insurance Company.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

1. Insurance broker—When agent oe company.

One Shelton was an insurance "broker who was paid, by defendant, a com- . mission on the business he brought His office was with another company, for whom one Keegan was bookkeeper. Keegan solicited the insurance in question, and “placed it through Shelton Held, that both Shelton and Keegan were the agents of the defendant company and not of the plaintiff, the insured.

2 Same—Insurance—Fire—When renewal contract takes effect.

As long as the renewal receipt remained with Shelton or Keegan, it was in the custody and control of defendants, and not of the insured. The delivery of said receipts to the insured was the inception of the renewal contract of insurance.

8. Insurance—Fire—What interest insurable.

The plaintiff made a general assignment. Afterward, with the consent of all his creditors the property embraced in said assignment was, by the assignee, reassigned to plaintiff. After such reassignment the plaintiff received the renewal receipt. Held, the plaintiff was in equity then the owner of the property - and insurance in his name was valid.

p. 413

The plaintiff sued the defendant to recover the sum of $8,000 on a policy of fire insurance. The defendant defended on the ground that, at the time of the insurance,

I the plaintiff’s assignor, James O’Connor, was not the owner of the property insured, and that during the life of the policy, the plaintiff had assigned his interest in the property covered by the policy of insurance. Upon the trial, plaintiff proved the following facts:

The plaintiff was the assignee of one O’Connor. That ; O’Connor was the keeper of a hotel at Fort Hamilton, and that on December 9, 1884, he had procured a policy of insurance in defendant’s company, and that this policy covered the property in the hotel owned by him; that on November 23, 1885, he made an assignment for the benefit *f his creditors to one Henry Dwyer; that on December 2, ■.885, all the creditors of the plaintiff consented to the propHerty embraced in the assignment of November 25, 1885, be-ping reassigned to plaintiff; that on December 23, 1885, ft Dwyer reassigned to the plaintiff all the property embraced I in the assignment of November 24, 1885; that on December 1 25, 1885, the plaintiff received a renewal of the policy of ■ insurance; that subsequent to the renewal of the insurance I and to the execution of the assignment, to wit: on January ■2, 1886, a fire occurred, destroying the property covered by W the policy of insurance.

ft The defendant offered no evidence at the trial, and the I court, upon motion of the defendant, dismissed the com-I plaint, but ordered that no judgment should be entered, I and directed that the exceptions be heard, in the first in-I stance, .at general term.

Donald F. Ayres, for pl’ff; Luke A. Lockwood, for def’t.

Under the decision in Bodine v. Ins. Co. ( 51 N. Y., 117 ), we think Shelton and Keegan were agents of defendants and not of the plaintiff.

Shelton was an insurance broker who was paid by dedant a commission on the business he brought. His office was with the Commercial Insurance Company, for whom Keegan was bookkeeper. Keegan “solicited” this insurance, and “placed it” through Shelton.

It needs very little familiarity with the usages of insure anee companies to see that Shelton represented the insurers and not the insured.

It follows that so long as the renewal' receipt; .dated December ninth, but prepared some days before, remained with Shelton or Keegan, it was in the custody and control of defendants, and not of the insured. Had a loss occurred between the ninth and twenty-fifth of December, defendants would have claimed, with success, that the renewal.

p. 414

receipt had never been delivered, and that the property was not insured.

The delivery of the renewal on December twenty-fifth, was the inception of the renewed contract of insurance, and at that time O’Connor was the owner. The insurance was, therefore, valid, and the dismissal of the complaint was error.

The plaintiff argues that upon the execution of the paper by the creditors of O’ Connor requesting Dwyer to reassign, etc., O’Connor became in equity the owner of the property, and under the decision of Pelton v. Ins. Co. ( 77 N. Y., 605 ), entitled to maintain this action. We do not find in that agreement any engagement on the part of Dwyer & Co. to accept the provision therein made for them.

And their consent would seem to be necessary to change j the status of the parties.

But from the date when Dwyer & Co. accepted and became bound by that agreement and were paid their claim, O’Connor became in equity the owner of the property, and insurance in his name was valid.

As the testimony now stands, the date when Dwyer &, Co.’s claim was extinguished is not material. We discuss it to this extent as it may become, important, if on a future ■ trial any doubt is cast upon the date on which the renewal receipt was delivered to O’Connor.

If the doctrine of Hitchkock v. Ins. Co. ( 26 N. Y., 68 ) is to be applied in this case, it may be argued that O’Connor had at all times an insurable interest in the property.

He was a debtor, and the property was a fund devoted to the payment of his debt. So far as his debts were paid, he was discharged.

But as the points already discussed require the reversal of the judgment, and seem decisive of any future trial, it may not be profitable to further discuss the question.

Judgment reversed, new trial ordered, with costs to appellant.

Barnard, P. J., and Dykman, J., concur.