Manhattan Life Ins. Co. v. Continental Ins. Companies

• Decision Date: 20 February 1974
• Citation: 308 N.E.2d 682,353 N.Y.S.2d 161,33 N.Y.2d 370
• Parties: , 308 N.E.2d 682 MANHATTAN LIFE INSURANCE COMPANY, Respondent, v. CONTINENTAL INSURANCE COMPANIES, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 161

353 N.Y.S.2d 161

33 N.Y.2d 370, 308 N.E.2d 682

MANHATTAN LIFE INSURANCE COMPANY, Respondent, v. CONTINENTAL INSURANCE COMPANIES, Appellant, et al., Defendants.

Court of Appeals of New York.

Feb. 20, 1974.

William Glatzer, New York City, for appellant.

Charles M. Schutzman, Wantagh, and A. Edward Major, for respondent.

JONES, Judge.

We are asked to decide whether transmittal of an executed deed to real property in the factual circumstances of this case constituted legal delivery effective to transfer title and thus to fix insurance liability for a destruction of the property by fire.

On an agreed statement of facts submitted pursuant to CPLR 3222, the trial court held that prior to the fire in this case there had been a deed delivery sufficient to pass title. The Appellate Division reversed and we now affirm the latter determination.

Continental issued a standard policy of fire insurance insuring the owner of residential property located in Brooklyn. The policy carried a standard first mortgagee clause in favor of Manhattan. Following default and foreclosure, Manhattan received a referee's deed to the property and thereby became the insured under the terms of the insurance policy.

Manhattan's mortgage had been insured under the National Housing Act (U.S.Code, tit. 12, § 1709 et seq.) and, pursuant to regulations issued thereunder, on June 7, 1970 Manhattan executed a deed of the premises to the Secretary of Housing & Urban Development. According to the agreed statement of facts the executed deed was then delivered to Manhattan's attorney, 'to be held by him'. On June 28, 1970 the residence on the property was destroyed by fire. The submission recites that the executed deed was recorded in the office of the Register of the City of New York the following day, June 29, and the inference that it was recorded by Manhattan's attorney may be drawn from the fact that the copy of the deed which accompanies the submission discloses that the deed was marked for return to him.

Transfer of title is accomplished only by the delivery of an executed deed; execution of the deed without delivery is legally insufficient to effect such a transfer. (Real Property Law, § 244; Ten Eyck v. Whitbeck, 156 N.Y. 341, 50 N.E. 963; see 1A Warren's Weed, New York Real Property (4th ed.), Delivery, § 1.02.) It is also true, as contended by Continental, that there is a presumption that a deed was delivered and accepted as of its date (Ten Eyck v. Whitbeck, Supra, p. 352, 50 N.E., p. 966), but this presumption must yield to opposing evidence (idem.)

Here the submission specifically states that the executed deed was delivered to the attorney of the grantor, not to the attorney for the grantee, and that it was 'to be held by him'. The submission is completely silent as to what conditions may have been attached to the agency for holding or what may have been the contingency on the occurrence of which the deed was either to be recorded or to be released to the grantee. The fact that Manhattan's attorney, the day after the fire but some three weeks after his receipt of the deed, may have recorded the deed cannot be so related back as to justify the legal...