Hartford Fire Ins. Co. v. Commercial Union Assur. Co.
| Citation | 131 F. Supp. 751 |
| Parties | HARTFORD FIRE INSURANCE COMPANY, Plaintiff, v. COMMERCIAL UNION ASSURANCE CO., Ltd., Renardov, Inc., and Dr. Franz S. Cohn, Defendants. |
| Decision Date | 09 June 1955 |
| Court | U.S. District Court — Southern District of New York |
Herman B. Zipser, New York City, for plaintiff.
Max J. Gwertzman, New York City, for defendant Renardov, Inc. DAWSON, District Judge.
This is a motion under Rule 56, Fed. Rules Civ.Proc. 28 U.S.C.A., for summary judgment made by the defendant Renardov, Inc.
There were originally three defendants in the suit. The cause of action against Commercial Union Assurance Co., Ltd. has been discontinued. The cause of action against Dr. Franz S. Cohn has been dismissed by Judge Murphy as a result of a motion for summary judgment.
This leaves only the defendant Renardov, Inc. which makes the present motion.
The action was originally started in the City Court of the City of New York and then was removed to this Court upon the petition of Commercial Union Assurance Co., Ltd.
The cause of action against the defendant Renardov, Inc. alleges that the plaintiff issued its policy of insurance to Dr. Franz S. Cohn covering a certain mink coat; that said coat was delivered to the defendant Renardov, Inc.; that the garment was not returned to the owner thereof, Dr. Franz S. Cohn; that by reason of the loss of such coat, claim was made upon the plaintiff by Dr. Franz S. Cohn for payment of the sum of $4,200 pursuant to a proof of loss; that in accordance therewith, payment was duly made by the plaintiff to Dr. Franz S. Cohn in the sum of $4,200. The action by the plaintiff against Renardov, Inc. is based upon the theory that it is subrogated to the rights of Dr. Franz S. Cohn against Renardov, Inc., the bailee of the coat.
The "loan receipt" authorized the plaintiff specifically to collect any such claim or claims and to begin, prosecute, compromise or withdraw in Dr. Cohn's name, but at the expense of the plaintiff, all legal proceedings that the plaintiff might deem necessary to enforce such claim or claims, and to execute in the name of Dr. Cohn any documents that might be necessary to carry the same into effect.
The plaintiff has brought this action against Renardov, Inc. in its own name rather than in the name of Dr. Cohn. Renardov, Inc. urges that the plaintiff is not the real party in interest, and that under Section 210 of the Civil Practice Act of the State of New York, every action must be prosecuted in the name of the real party in interest. See also Rule 17, Federal Rules of Civil Procedure.
The law of New York, which is applicable in this situation, is clear. Where a party has received loans from an insurance company for the amount of a loss under an agreement providing that the loans are repayable out of any monies received by the party on account of the loss, the insurance company is not subrogated to plaintiff's claim on the loss and, therefore, the insurance company is not the "real party in interest". Balish v. Advance Fuel Oil Corporation 2d Dept., 1943, 266 App.Div. 683, 40 N.Y.S.2d 410; Home Insurance Co. v. Rosenfeld, App. Term, 1st Dept., 1945, 56 N.Y.S.2d 454.
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