Hamilton Fire Ins. Co. v. Greger

Decision Date20 July 1927
Citation246 N.Y. 162,158 N.E. 60
PartiesHAMILTON FIRE INS. CO., Inc., v. GREGER et al.
CourtNew York Court of Appeals Court of Appeals


Action by the Hamilton Fire Insurance Company, Inc., against Maurice N. Greger and another. The Special Term denied plaintiff's motion for a summary judgment against the named defendant, the Appellate Division, First Department, reversed the order and granted the motion (218 App. Div. 536, 218 N. Y. S. 534), and defendant appeals.

Judgment of Appellate Division reversed, and order of Special Term affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Andrew J. Ewald, Maurice Block and Harrison W. Gebhardt, all of New York City, for appellant.

Theodore Kiendl and John F. Woods, both of New York City, for respondent.


Upon motion of the plaintiff, summary judgment has been entered in favor of the plaintiff against the defendant Maurice N. Greger, for the recovery of the sum of $2,000 which the plaintiff had previously paid to the defendant under a policy of insurance issued by it. Under the terms of the policy, the insurance company agreed to indemnify the defendant Greger against loss by reason of the destruction of an automobile owned by him. On or about April 1, 1923, the automobile was destroyed in a collision with a train operated by the defendant New York, Susquehanna & Western Railroad Company, and on the 3d day of May, 1923, the insurance company paid to the assured the sum of $2,000. The receipt for that payment recites that it was ‘in full of all claims and demands for loss and damage by collision on the 1st day of April, 1923, to the property insured by policy No. 40230.’

There is no contention that the insurance policy was not valid or that Greger, the assured, could not have compelled the insurance company to pay him the sum of $2,000 which he has received. The right which the insurance company asserts for the return of the moneys so paid is predicated upon the subsequent payment to Greger by the railroad company of a sum of money in satisfaction of a claim for damages caused by the collision through which the automobile was destroyed.

When the insurance company paid to the assured the loss for which it had agreed to indemnify him, it, of course, became subrogated to any claim for the same damages which the assured might have against a wrongdoer who has caused the damage. Ocean Accident & Guarantee Corporation v. Hooker Electrochemical Co., 240 N. Y. 37, 147 N. E. 351. The receipt, which Greger gave to the insurance company at the time he received the stipulated indemnity from it, expressly recognizes the company's right of subrogation and contains a formal assignment of all claims against third parties to the extent of the amount of the payment.

In August of the same year Greger began an action against the New York, Susquehanna & Western Railroad Company for damages caused by the collision in which his automobile was destroyed. The complaint in that action states that, as a result of the collision, ‘the automobile of the plaintiff was destroyed and plaintiff, who was riding therein, was thrown out and his collar bone broken, his arm dislocated at the shoulder and elbow and plaintiff received other severe lacerations about the face, left hand, and elbow and other parts of his body. * * * That said injuries are permanent, and plaintiff underwent great pain and suffering as a result of said negligence. His clothing was destroyed and in divers other respects he suffered considerable damage and will continue to suffer damage in the future.’ Greger settled and discontinued his action against the railroad company, receiving in satisfaction the sum of $3,000. At that time he executed a release to the railroad company ‘from all debts, claims and demands whatsoever, and particularly such as have arisen by reason of, or in any manner grow out of but in no wise limiting this release for all damages sustained as a result of an automobile owned and operated by me colliding with a train of the defendant on or about April 1, 1923, at Rochelle avenue, Rochelle Park, Bergen county, N. J., and for which suit was instituted by my attorneys, Messrs. Mackay & Mackay, by summons dated August 20, 1923, in the Bergen county circuit court.’ The release further recites:

‘I understand and intend that this release shall operate to discharge the said New York, Susquehanna & Western Railroad Company and said other lines and companies from all claims or demands arising under the laws of any state or of the United States, including all claims and demands that I may now have; or that I, or my executors, administrators, or assigns hereafter may have by reason of said accident, under all or any or either of said laws.’

When the insurance company learned that Greger had begun and thereafter settled an action against the railroad company for damages suffered in the same accident in which the insured automobile was destroyed, it began this action against Greger and the railroad company. In its complaint it alleges that the automobile was destroyed by the negligence of the railroad company, and that the railroad company settled the action brought against it by Greger ‘after being informed of the fact that Maurice N. Greger was insured against any damages to his automobileas a result of a collision.’ The theory of the complaint, at least against the railroad company, is that in spite of the settlement of the action and the release, the insurance company's claim by subrogation against the railroad company is still in existence; yet because of this settlement,...

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