Grunauer v. Westchester Fire Ins. Co.

• Decision Date: 20 November 1905
• Citation: 62 A. 418,72 N.J.L. 289
• Parties: GRUNAUER et al. v. WESTCHESTER FIRE INS. CO.
• Court: New Jersey Supreme Court

62 A. 418

72 N.J.L. 289

GRUNAUER et al.

v. WESTCHESTER FIRE INS. CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1905.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Raphael Grunauer and others against the Westchester Fire Insurance Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Louis H. Grunauer and Michael Dunn, for plaintiffs in error. James G. Blanvelt, for defendant in error.

VREDENBURGH, J. The fire insurance policy, the subject of this suit, was executed August 21, 1902, between one Garretson and the defendant, and contains the following standard policy insurance conditions, authorized by statutory forms (Gen. St. p. 1766, and act of 1902 [Laws 1902, p. 437, § 77]), viz., that "if the interest of the insured be other than unconditional and sole ownership * * * or if any change, other than by the death of an insured, takes place in the interest, title or possession of the subject of insurance (except change of occupants without Increase of hazard) whether by legal process or judgment, of by voluntary act of the insured, or otherwise, * * * the entire policy * * * shall be void." At the execution of the policy one Garretson was the owner in fee simple of the insured premises, consisting of a dwelling house and the land upon which it stood, but at the issuance of the policy a mortgagee clause was attached, by which any loss thereunder was payable to one Manson, a mortgagee; and in February. 1903, when the property was conveyed by Garretson to plaintiffs, they assumed payment of the mortgage as part of the consideration, and claimed, also, to stand in such prior right, as well as subsequent owners, by the indorsed consent of the company upon the policy. On July 1, 1903, one Mrs. Speck, having about a month previously rented and entered into the occupation of the premises as a tenant paying monthly rent, made with the plaintiffs a written agreement to purchase the insured premises, the material provisions of which were that the plaintiffs agreed (to quote) "to sell and convey to her, her heirs and assigns, all the land and dwelling bouse thereon erected for the sum of three thousand five hundred dollars," which sum she agreed to pay to the plaintiffs, "their heirs and assigns," in the amounts and manner following: "One thousand dollars to be paid on the delivery of this agreement,* * * and the balance, or two thousand five hundred dollars, to be paid in monthly installments of ten dollars a month on the first day of each and every month hereafter, beginning with the month of August, next, 1903, until the sum of three thousand five hundred dollars is fully paid and satisfied, together with interest on the unpaid balance at the rate of six per cent. per annum, payable semiannually, until the whole amount is paid up," and "on receiving such payments, and being fully paid and satisfied at the time and manner above mentioned," the plaintiffs should "execute, acknowledge, and deliver * * * to her," or her heirs and assigns, a "proper deed for the conveying and assuring to her or them the fee simple of the said premises, free and clear of all incumbrances." On July 1, 1903. Mrs. Speck paid to plaintiffs, upon account of the consideration mentioned in the contract, the specified $1,000, and thereafter, on the first days of each month following before the loss, paid not only the agreed $10, hut also $30 per month additional, making for the four months $160. During this period she made in the house certain permanent improvements, adding three rooms in the attic, a china closet in the kitchen, and various other additions, at a cost of about $250, and obtained a policy of insurance upon her insurable interests in the premises, in her own name, of $2,000, upon which she, after the loss, collected the sum of $1,160 as representing her portion of the loss. On November 19, 1903, the house was consumed by fire, while Mrs. Speck was still in possession. At the close of the evidence in the suit upon the policy first named, the learned trial justice, upon defendant's motion, direct ed a verdict for the defendant.

The plaintiffs in error now urge that judgment should have gone in their favor, claiming, first, that the condition respecting ownership is only applicable to the...