Sun Ins. Co. v. Greenville Bldg. & Loan Ass'n No. 2

• Decision Date: 02 March 1896
• Parties: SUN INS. CO. v. GREENVILLE BUILDING & LOAN ASS'N No. 2.
• Court: New Jersey Supreme Court

33 A. 962

58 N.J.L. 367

SUN INS. CO.

v. GREENVILLE BUILDING & LOAN ASS'N No. 2.

Court of Errors and Appeals of New Jersey.

March 2, 1896.

(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice Lippincott.

Action by the Greenville Building & Loan Association No. 2 against the Sun Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed.

Collins & Corbin, for plaintiff in error.

Henry Puster and John Griffin, for defendant in error.

VAN SYCKEL, J. This suit was brought by the Greenville Building & Loan Association against the Sun Insurance Company to recover the amount insured by a policy dated August 30, 1893, on a three story frame building, No. 414 Wall street, Elizabethport, N. J. The plaintiff below held a mortgage upon the premises, executed by one Jacob M. Lawton, who subsequently conveyed to Barnet Rubin, subject to said mortgage. On the application of said mortgagee, the policy of Insurance was issued by the Sun Insurance Company in the name of H. Roobeine, owner,—the loss, if any, payable to said Greenville Building & Loan Association, as mortgagee. By mistake, the mortgagee gave the insurance company the name of H. Roobeine as the owner, while the fact was that he never was the owner, the title being in a* man by the name of Barnet Rubin. The declaration alleges that the insurance company insured H. Roobeine,—the loss, if any, payable to the plaintiff, as mortgagee. The plea is non assumpsit.

The trial judge ordered a verdict for the plaintiff below. In this there was error. The plaintiff failed to sustain the affirmative of the issue joined. The policy purports to insure the property of Roobeine, and it was upon his property the plaintiff claimed to have a mortgage All this was disproved in the trial so that there was no sufficient basis of fact upon which to support a judgment for the plaintiff. It seems clear that no action at law can be founded upon this policy until it is reformed in equity.

In another aspect of the case, there was error in directing a verdict for the plaintiff. In the trial court, evidence was given, on the part of the defendant company that notice was given to the mortgagee, that the insurer, in virtue of a right reserved in the policy so to do, elected to cancel said policy, and that the mortgagee before the fire occurred, agreed that it should be canceled, and promised to surrender it to the insurance company. This was denied by the mortgagee, but it was a question...