Mayor v. Brooklyn Fire Insurance

By the Court, Leonard, J. The lease from the mayor &c. of New York to Edward Riddle and his associates, was upon the condition that he and his associates should erect on the demised premises such a building as was described in a certain petition and resolution, and at the expiration of the term, quit and surrender the premises in as good state and condition as reasonable use and wear thereof would permit. The rent reserved was nominal only. The terms of this covenant operated as a grant of the superstructure so to be erected, to take effect at the expiration of the term. The building -was to be the consideration, in part, for the lease. Without securing the construction and ownership of the edifice at the end of the term there was no apparent object to be attained by the covenant of the lessee to build. We think the future ownership of the building was in the contemplation of the parties at the time of its execution, and that, at the expiration of the term the plaintiffs became the owners of the superstructure erected in pursuance of the condition of the lease, a compliance with which alone rendered it operative in favor of the grantee. If the building were to be considered as the property of the lessee at the termination of the lease, the plaintiffs were liable to be charged for its value as wrongdoers, at the suit of the receiver, after they had forcibly ejected him and taken possession thereof. The plaintiffs were then in possession under a claim of the ownership of the building, and it is a question which the defendants are not called upon to vindi [235] cate, how the plaintiffs acquired the title, or whether’ they were liable to be dispossessed or to be charged as wrongdoers. The defendants cannot be allowed to dispute the plain tiffs’ interest in the building, even if the title was acquired by an act which constitutes a trespass as against the lessee or the receiver. The receiver can maintain no action to recover the actual possession of the building since its destruction, and a recovery against the plaintiffs for its value, by way of damages, would vest the ownership in them, even if they acquired no title in it by the conditions of the lease, and the expiration of the term. The questions sought to be raised by the defendants based on the manner by which the plaintiffs acquired title are not open to the defendants, and the authorities cited on this subject are not applicable here. The cases are between landlord and tenant and others standing in a representative relation, which is not the situation of the defendants here. It may be observed that no action has been prosecuted by the receiver to recover the possession of the building, so far as is shown by the case. There is no doubt that the plaintiffs had an insurable interest in the building as against these defendants. The exceptions taken in respect to the interest of the plaintiffs in the subject insured, are therefore not well taken. It is insisted that the building was occupied and used for certain purposes, and contained goods, wares and merchandise, within the schedules attached to the policy, specifying forbidden occupations and articles, denominated hazardous, extra-hazardous, and special hazards, and that the body of the policy contains no language that permits such occupations to be carried on, or such articles to be kept. The policy describes the building as the Crystal Palace; and mentions that it contains the furniture and fixtures lately owned by the association for the exhibition of the industry of all nations, and also the property of exhibitors remaining in the building. The premises had been used and occupied as a place of exhibí [236] tion for “ The World’s Fair,” as it was called, and also for the annual fair of the American Institute, for several years prior to the execution of the policy of insurance, and the nature of the prior occupation was-well known to the defendants. There was-no “fair” bn exhibition at that time, but the annual “fair” of the American Institute was opened at the building in September following, and numerous articles and manufactures, and also a restaurant, within the restrictions mentioned in the schedules attached to the policy were kept and carried on there until the fire which -destroyed the building. . There were numerous articles contained in these schedules which were in the building at the time the policy was,executed, and had been on exhibition at that place, and belonged to exhibitors, or to the receiver of the association for- the exhibition of the industry of all nations. 1 ■ The policy describes the building and-the-general nature of its contents, and the purpose of its occupation. Nothing can be found leading to the inference that the building was not to be occupied and used as it had been before, and that such articles as had been on exhibition, and such manufactures and occupations as had been carried on there were not to be again used, exhibited and carried on. The property described in the policy, and the purposes to which the building was dedicated, sufficiently -indicate the character and nature of the articles to be kept there and the business to be transacted. The nature and extent of the risk must have been known to the insurers to embrace articles and pursuits within the schedules referred to, which were annexed to the policy. The refusal of the justice at the. trial -to give the instructions asked for in respect to the manner of the use of the building or the nature of the articles kept therein, was correct, and the exceptions of the defendant’s counsel -to such refusal were not well taken. ... The defendants also offered to give evidence of the -verbal statements of the agent of the plaintiffs who effected the [237] insurance, in respect to the future occupation of the building, but it was excluded, and to this ruling the defendants excepted. Such evidence would tend to vary the operation and effect of the language contained in the policy. If there was any warranty as to the future use or occupation of the property it must be contained in the policy, or be reduced to writing in proper form, before it can be admitted to affect its construction or obligation. Such a statement is not, in legal sense, a representation of any fact. There was no fact in existence about which the statement proposed to be given in evidence was offered. The ruling of the justice on this question was correct. [New York General Term, February 1, 1864. The judgment was suspended at the trial by order of the justice, and the exceptions were directed to be heard at the general term in the first instance. Judgment should now be entered for the plaintiffs on the verdict, with costs. Leonard, Sutherland and Clerke, Justices.]