Truglio v. Zurich Gen. Accident & Liab. Ins. Co.

• Citation: 247 N.Y. 423,160 N.E. 774
• Court: New York Court of Appeals
• Decision Date: 27 March 1928
• Parties: TRUGLIO v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited.

247 N.Y. 423

160 N.E. 774

TRUGLIO

v.ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited.

Court of Appeals of New York.

March 27, 1928.

Action by Rosa Truglio against the Zurich General Accident & Liability Insurance Company, Limited. Judgment of the Trial Term entered on a special verdict of the jury in favor of plaintiff was affirmed by the Appellate Division of the Supreme Court (221 App. Div. 760, 223 N. Y. S. 595), and defendant appeals.

Reversed and rendered.

Appeal from Supreme Court, Appellate Division, Second Department.

Edward P. Lyon, Harold S. Lyon and Alfred W. Andrews, all of New York City, for appellant.

Benjamin C. Ribman, of New York City, for respondent.

CARDOZO, C. J.

Plaintiff recovered a judgment for personal injuries suffered through a fall upon a sidewalk. Execution being returned unsatisfied, she brings this action, under Insurance Law (Cons. Laws, chap. 28) § 109, against defendant, an insurance corporation, alleging that the owners of the building held a liability policy issued by defendant to which plaintiff should be subrogated. The defendant denies that the owners were insured when the injuries were suffered.

One Amico was the owner of a house and lot in Brooklyn. She held the defendant's liability policy, made out in error, however, to Julia Amico instead of Giuseppa. On August, 1, 1921, she agreed to sell this property to Giuseppa and Caterina Falco, to whom she made a deed on or about August 31. The policy of insurance provided:

‘No assignment of interest under this policy shall bind the company unless such assignment is consented to by endorsement signed by the manager and attorney or assistant manager for the United States.'

On September 1, one Palumbo, a lawyer, mailed the policy to the defendant requesting that the name Julia be changed to Giuseppa. This was done. There was no mention of the sale. The defendant says that after making the change, it sent the policy back to the brokers who procured it. A fortnight thereafter, on September 14, the same lawyer wrote the defendant that the premises had been conveyed to the Falcos and asked that their names be indorsed upon the policy as owners. This letter was received by the defendant on September 15. Two days later, September 17, the accident occurred. At that time the defendant had done nothing to signify its acceptance of the new owners as the parties insured. Indeed, it denies that it had the policy in its possession. The trial judge left to the jury a single question of fact: Did the defendant have such possession on September 15 when the request for the indorsement was received at its office? If it did, the jury were instructed that the acceptance of the new owners was to be conclusively presumed, and that the defendant would be liable as if an indorsement had been made.

We see no basis for such a holding. This is not a case where the original party to the contract, retaining an interest in the property, seeks to avoid a forfeiture claimed to have resulted from placing an incumbrance upon such interest or transferring a part interest to another. Even in such circumstances one might be at a loss to find the evidence of waiver or estoppel. This is a case where the original party to the contract has dropped out altogether, transferring the whole title to others, who have no interest in the insurance unless a new contract has been made between them and the insurer. The policy of insurance in their hands was no longer ‘a live instrument’ (Lett v. Guardian Fire Ins. Co., 125 N. Y. 82, 25 N. E. 1088), unless life was...