Kase v. Hartford Fire Ins. Co.

• Decision Date: 23 October 1895
• Parties: KASE v. HARTFORD FIRE INS. CO.
• Court: New Jersey Supreme Court

32 A. 1057

58 N.J.L. 34

KASE

v. HARTFORD FIRE INS. CO.

Supreme Court of New Jersey.

Oct. 23, 1895.

(Syllabus by the Court.)

Error to circuit court, Essex county; Childs, Judge.

Action by John H. Kase, for the use of Albert O. Headley, against the Hartford Fire Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued at February term, 1895, before BEASLEY, C. J., and REED and GUMMERE, JJ.

J. Frank Fort, for plaintiff in error.

Edw. A & William T. Day, for defendant in error.

GUMMERE, J. This is an action brought by the plaintiff, for the benefit of Albert O. Headley, upon a policy of insurance issued by the defendant corporation. The principal facts in the case are undisputed, and briefly these: The Hartford Fire Insurance Company on the 8th day of May, 1890, issued to G. Schwab & Bros, a policy of insurance upon certain property in the city of Newark, which was covered by a mortgage held by John H. Kase, the plaintiff in this suit. The policy contained this clause: "Loss, if any, payable to John H. Kase, mortgagee, as interest may appear." It also contained the ordinary provision that the interest of the mortgagee should not be invalidated by any act or neglect of the mortgagor, nor by any change in the ownership of the property. On the 10th day of November, 1891, Kase assigned to Headley the mortgage which covered the insured property, together with the bond which it was given to secure, but did not assign to him the policy of insurance, or his interest in it. Nor did the insurance company consent to the transfer to Headley, or agree that he should stand in the place of Kase, so far as the payment of any loss was concerned. A short time after the mortgage was assigned, and on the 28th of November of the same year, the mortgaged premises were partially destroyed by fire. Before this occurred, however, the policy of insurance had become invalidated, as against the owners of the premises, by reason of their violation of certain of its conditions, and had ceased to be an obligation of the company, so far as they were concerned. After the fire occurred, Kase delivered the policy of insurance to Headley, and then brought this suit, in his own name, for the use of Headley.

The question to be determined is whether such a suit can be maintained, and damages recovered from the company, by reason of the partial destruction by fire of the mortgaged premises, notwithstanding that at the time of the fire the policy had...