Opinion
March 22, 1950.
Appeal from Supreme Court, Erie County, HALPERN, J.
G.M. Blackmon and Valentine E. O'Grady for respondent.
Hugh McM. Russ and Grover R. James, Jr., for appellant.
Present — TAYLOR, P.J., McCURN, LOVE, KIMBALL and PIPER, JJ.
The action is brought under article 15 of the Real Property Law seeking a determination that the plaintiff is the sole owner of certain premises.
The Special Term has denied the defendant insurance company's motion for an order dismissing the complaint as to it and for a further order granting it judgment on its counterclaim, which is based on an assignment to it by the mortgagee of a mortgage on premises which had been damaged by fire, on payment by it to the mortgagee of the principal and interest then due, which assignment purports to have been made in accordance with the provisions of the mortgagee clause of the New York standard fire insurance policy.
The plaintiff has made no motion.
The assignment of the mortgage by the mortgagee was predicated upon a claim by the appellant insurer that, under the provisions of the insurance contract, no liability existed as to the mortgagors or to the owner. As has been pointed out by the Justice at Special Term, a liability did exist as to the mortgagors. We agree with his statement in which he says: "While they no longer had any title to the property, they still had an insurable interest therein by reason of their personal liability upon the bond and mortgage which they had given to Clara Froschl. * * * When the insurance company paid the amount of the insurance policy to the mortgagee in this case, it not only performed its contract with the mortgagee, but it discharged an obligation which it owed to the named insured, the mortgagor." ( 193 Misc. 647, 651.)
Appellant urges that an affirmance of this order will allow a double recovery by the mortgagors or provide an unjust enrichment to the plaintiff. The record does not disclose that the fire loss was caused by any wrongful act of the mortgagors or the plaintiff. Appellant accepted the premium for the contract to insure the building in question and has done no more than its contract of insurance required it to do. Nor does it appear in the record that plaintiff has collected from appellant, or any other insurer, the amount of his fire loss. Upon the facts before us, we think this contention of appellant cannot govern the decision of this case. ( Alexandra Restaurant v. New Hampshire Ins. Co., 272 App. Div. 346, affd. 297 N.Y. 858; Foley v. Manufacturers' Fire Ins. Co., 152 N.Y. 131; Rosenbloom v. Maryland Ins. Co., 258 App. Div. 14.)
When the fire loss occurred, the insurer owed a duty to both the mortgagee and to the mortgagors, the named insureds, to pay the loss to the extent of the amount due on the mortgage, it being within the policy limits, and was not entitled to an assignment of the mortgage under the subrogation provisions of the New York standard mortgagee clause of its insurance contract.
All concur.
Order affirmed, with $10 costs and disbursements.