Hansen v. Cont'l Ins. Co. of New York

• Decision Date: 31 May 1933
• Citation: 262 N.Y. 136,186 N.E. 420
• Parties: HANSEN v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

262 N.Y. 136

186 N.E. 420

HANSEN

v.CONTINENTAL INS. CO. OF CITY OF NEW YORK.

Court of Appeals of New York.

May 31, 1933.

Action by Harry Hansen against the Continental Insurance Company of the City of New York. From an order of the Appellate Division (237 App. Div. 905, 262 N. Y. S. 895), affirming an order of the Supreme Court denying defendant's motion for judgment dismissing the complaint upon the ground it did not state facts sufficient to constitute a cause of action, defendant appeals.

Affirmed.

The following questions were certified:

‘1. Does the complaint state facts sufficient to constitute a cause of action?

‘2. Does section 109 of the Insurance Law of this State apply to the contract of insurance on which the cause of action set forth in the complaint is based, a copy of the policy being annexed to the complaint?'

Appeal from Supreme Court, Appellate Division, Second department.

Millard F. Tompkins and Arthur M. Boal, both of New York City, for appellant.

Ira A. Campbell and Roger B. Siddall, both of New York City, for American Steamship Owners' Mut. Protection & Indemnity Ass'n, Inc., amicus curiae.

Sol Gelb and Emanuel Friedman, both of New York City, for respondent.

CROUCH, Judge.

Defendant, a domestic insurance corporation, issued to the owner of the vessel Mascot a policy of ‘marine insurance,’ as that term is defined in section 150 of the Insurance Law (Consol. Laws, c. 28). Plaintiff, a member of the crew of the Mascot, was injured as a result of an explosion which occurred upon said vessel. In an action brought under the Jones Act (§ 33, 46 USCA § 688) in a federal court, plaintiff recovered a judgment against the owner. Execution was returned wholly unsatisfied by reason of the insolvency of the owner. This action was brought to recover from the insurer the amount of that judgment not exceeding the amount of the policy. The complaint herein is attacked for insufficiency, upon the ground that the policy was one to indemnify against loss, as distinguished from one to indemnify against liability, and that section 109 of the Insurance Law is not applicable to policies issued pursuant to section 150 of the Insurance Law.

If the policy indemnified the owner against loss, that is, for money actually paid by him in satisfaction of the judgment recovered by plaintiff, then we are of the opinion that the complaint is sufficient. Brustein v. New Amsterdam Casualty Co., 255 N.Y. 137, 142, 174 N. E. 304. It is true that section 109, when originally enacted, applied only to policies issued by casualty companies. Subsequent amendment of the section, however, made its provisions, in terms, applicable to all policies of insurance against loss or damage resulting from an accident to or an injury suffered by an employee or other person for which the person insured is liable. No good reason is suggested for assuming that the provisions of section 109 were not intended to apply to any policy issued by a stock company, then or thereafter authorized to insure against liability for personal injuries, whether on land or sea. We are not now called upon to deal with like insurance issued by companies incorporated under section 162 of the Insurance Law.

By the Laws of 1921, chapter 236, section 150 of the Insurance Law was amended for the express...