Romanych v. Liverpool and London and Globe Ins. Co.
| Decision Date | 15 April 1957 |
| Citation | 167 N.Y.S.2d 398,8 Misc.2d 269 |
| Parties | Michael ROMANYCH and Joseph Zabawski, Plaintiffs, v. The LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Ltd., Defendant. |
| Court | New York Supreme Court |
Albert C. Jordan, Yonkers, for plaintiff.
Ainsworth, Sullivan, Tracy & Knauf, Albany, for defendant, with J. Joseph Murphy, Albany, of counsel.
The plaintiffs sue in this action at law for a sum of money under an insurance policy issued by the defendant on January 13, 1956 for one year. The plaintiffs are the owner and mortgagee, respectively, of about one hundred thirty-five acres of land and buildings at Long Lake, New York. The policy in question contained a mortgagee clause payable to Joseph Zabawski, plaintiff.
In July, 1954, the plaintiff, Michael Romanych, was the sole owner of the premises and Joseph Zabawski was the sole mortgagee. At the time, the plaintiff, Michael Romanych, made a contract in writing with one Roland Austin and Jennie Austin, his wife, to sell the above premises for a stated sum of money, payable in installments of $100 monthly, with interest, and giving Austin possession of the premises.
At that time, the premises were improved with one large frame building heretofore used as a hotel, and two small out buildings of lesser value. In October, 1954, the hotel building was totally destroyed by fire. Prior to the happening of the fire, certain articles had been removed from the hotel building and used to equip the four buildings here in question. Litigation developed between the plaintiffs and the Austins and the Insurance Companies. In June, 1956 those claims were compromised. In March, 1955, Austin defaulted in his payment of monthly sums and also defaulted in payment of taxes which he agreed to pay under his contract with Romanych and therefore, in July, 1955, Romanych, in conformity with the provisions of the contract, gave notice to Austin that the full amount of the unpaid installments were then due and payable and demanded payment within a reasonable time. The amounts were not paid. Shortly thereafter, Romanych, in the Supreme Court of Hamilton County, began an action of ejectment against the Austins. The Austins appeared and thereafter a motion was granted striking out the answer of the Austins. A judgment was entered on or about December 5, 1955 and about one month thereafter, execution of this judgment was issued to the Sheriff of Hamilton County. An order of eviction was rendered on July 25, 1956 and on or about July 26, 1956 the Sheriff of Hamilton County gave notice to the Austins that in five days he would compel them to vacate the premises.
During the time of his possession, Austin had proceeded in the partial erection of four buildings which are known as Building No. 1--Austin's Residence; Building No. 2--Ziehm's Residence; Building No. 3--Bunk House and Building No. 4--Cottage.
On or about July 30, 1956, Building No. 2 was removed from the premises by placing it on skids and towed by a tractor. The character of the damage to the other buildings was the destruction of the roof of Building No. 1; the breaking of windows and frame and of doors and frames on several of the buildings; disconnecting and breaking of heating conduits and plumbing throughout the buildings.
The insurance policy was in the standard form of the fire insurance policy under Insurance Law, § 167, with an addition of certain extended insurance as follows:
'Perils Insured Against.
The foregoing liability is limited by certain subdivisions of the policy as (a) $50 loss deductible clause. (E) For loss if the property has been vacant for 30 consecutive days immediately preceding the loss. A building in process of construction shall not be deemed vacant. (F) For loss by pilferage, theft, burglary or larceny.
A pertinent portion of the contract of sale between Romanych and Austin contained the following:
'It is mutually agreed between said parties that the said parties of the second part shall have possession of said premises as of the date of this contract and they shall keep the same in as good condition as they are in at the date hereof, until the said sum shall be paid as aforesaid; and if said parties of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such a failure, have the right to declare the same void, and to retain whatever may have been paid on such contract, and all improvements that may have been made on said premises, and may consider and treat the parties of the second part as tenant holding over without permission, and may take immediate possession of the premises and remove the parties of the second part therefrom.'
The right, title and interest of the Austins, Ziehms and all others was cut off by the judgment in ejectment of December 5, 1955. At that time, the improvements made upon the property became the plaintiff's in accordance with the written contract of the parties.
The damage done to the buildings occurred immediately after the Sheriff had given Austin five days to vacate on July 25, 1956. This action on the part of Austin and others under his discretion constituted a breach of the contract under which all improvements were to be the vendors upon any default in payments.
The systematic destruction and removal of fixtures from the buildings remaining upon the premises were mischievous acts. The question here...
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