Gutman v. Rogers — 34 N.Y. St. Rep. 690

Majority

p. 690

Carl Gutman, App’lt, v. Henry Rogers, Resp’t.

(City Court of New York,

General Term,

Filed December 26, 1890.)

Headnote

Consignor and consignee—Right oe consignor to insurance moneys ON PROPERTY DESTROYED.

Plaintiff consigned to defendant certain property for sale, -which, with property of other consignors was destroyed by fire and a sum was paid by isnurers to defendant on account of the total loss ; no particular sum being paid on account of the loss of plaintiff’s property. _ Held, that the court could notin this action determine plaintiff’s Interest in the moneys so-paid and that the complaint was properly dismissed.

Appeal from judgment entered on dismissal of complaint by the trial judge.

Kaufmann & Saunders, for app’lt; J. H. V. Arnold, for resp’t.

The fire destroyed property to the amount of $151,950.29, all of which, excepting $2,500 worth, belonged to the defendant. The total amount of insurance money received was $61,750, or about forty per cent of the total loss. Besides the plaintiff and defendant, there were nine other parties whose property was also destroyed by said fire. As their goods, like those of the plaintiff, were onAonsignment with the defendant, these individuals were interested in the moneys received from the companies. No particular sum was paid by the companies on account-of the loss of any particular property, nor on account of the loss of any particular person or persons, but the $61,250 was paid on account of the total loss of all the property of the eleven different parties, irrespective of its nature or ownership. The trial

p. 691

court could not, under the circumstances, determine from the evidence the extent of the plaintiff’s interest in and to the insurance moneys received by the defendant, nor could it determine the several equities of the nine other parties not before the court. Neither could be determined without the other. The result could be more appropriately reached by a suit in equity with the proper parties, wherein their several equities might be fixed and determined. Under the conditions stated, we find no error in dismissing the complaint. This left the plaintiff free to seek a more appropriate remedy than the one he invoked. It follows that the judgment appealed from must be affirmed, with costs.

McAdam, Ch. J., and Van Wyck, J., concur.