Opinion
October, 1905.
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 time 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 what 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. 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 severable 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 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 payment of the said $1,200 to the mortgagee that the same be paid to the appellant.