Moore v. Hanover Fire Ins. Co. of City of New York
| Decision Date | 06 February 1894 |
| Citation | 36 N.E. 191,141 N.Y. 219 |
| Parties | MOORE et al. v. HANOVER FIRE INS. CO. OF CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, second department.
Action by Philip H. Moore and Philip J. Ackert, as executors, etc., of Barbara C. Rikert, deceased, against the Hanover Fire Insurance Company of the City of New York, on a policy of fire insurance. From a judgment of the general term (24 N. Y. Supp. 507) affirming a judgment of the special term in plaintiffs' favor, defendant appeals. Reversed.
A. T. Clearwater, for appellant.
Esselstyn & McCarty, for respondents.
On the 15th of July, 1890, defendant insured the property of one Maggie P. C. Smith for a period of three years, issuing to her a standard policy, the loss, if any, first payable to Barbara C. Rikert, mortgagee, as interest might appear. Barbara C. Rikert was the owner of a mortgage covering the insured premises, executed by Maggie P. C. Smith, the owner. On the 17th of August, 1891, Mrs. Rikert having died in the mean time, her legal representatives began an action to foreclose said mortgage, which proceeded to judgment, and the premises were advertised to be sold October 26, 1891. Three days before the date of sale, the dwelling house covered by the policy was destroyed by fire. The defendant declined to pay the loss, and plaintiffs, as legal representatives of the mortgagee, began this action to enforce payment.
The answer sets up, by way of defense, that the defendant did not have knowledge or notice of the commencement of the said foreclosure proceedings, or of the notice given by the referee of the sale of the property covered by the said policy, nor did the defendant assent thereto by agreement indorsed upon the policy. The policy reads that ‘this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy, by virtue of any mortgage or trust deed.’ The special term found that both the plaintiffs and Maggie P. C. Smith, the insured under said policy, had knowledge of the said foreclosure proceedings on the said 17th day of August, 1891. The policy contains a further condition material to be considered, viz.: ‘This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as, by the terms of this policy, may be subject of agreement indorsed hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.’ The special term found that, before the commencement of the foreclosure proceedings upon the mortgage alleged in the complaint, the plaintiffs in this action informed J. H. Thorn, a duly-authorized agent of this defendant at Rhinebeck, that they were about to commence such proceedings, and the said agent agreed that such proceedings might be commenced without injuring the plaintiffs' rights under the policy. It is further found that there is no evidence that the said J. H. Thorn, the alleged agent of the defendant, ever noted upon any register kept by him that the said foreclosure action or proceeding had been commenced. The policy was read in evidence, and is signed by the president and secretary of the defendant, and by J. H. Thorn, agent. There is no other proof as to the power and authority of Mr. Thorn, except that he was the duly-authorized agent at Rhinebeck, and signed the policy as above. It is also found that no agreement or consent for the commencement of the said foreclosure action and proceedings, or for the giving of a...
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