Tremont Savings & Loan Ass'n v. Aetna Casualty & Surety Co.

Order, Supreme. Court, Bronx County entered on January 22,1971,-unanimously reversed, on the law, plaintiff-respondent’s motion for summary judgment.against defendant-appellant denied, and defendant-appellant’s motion for summary judgment dismissing the complaint granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The suit is for the proceeds of a policy of fire insurance covering defendant corporation’s' premises, on which plaintiff holds the mortgage. The original mortgage loan had been made to defendant’s predecessor in title under a contract providing that there was to be fire insurance for plaintiff’s benefit; on .acquisition of the property, defendant insured the premises but, there being no such contractual requirement as to it, did not provide that the insurance was to be. for the mortgagee’s benefit.. In granting summáry judgment for plaintiff,' Special Term relied on a so-called mortgage transfer card in plaintiff’s possession,, executed by defendant’s officer,' which, however, did no more than- acknowledge' defendant’s assumption of .the mortgage debt. -Nor does the statute cited by Special -Term (Real Property Law, § 254, subd. 4) for preservation of “ an equitable' lien ” in plaintiff’s favor afford it any comfort; it was adopted (L. 1965 eh.'830) for the. purpose of overcoming the holding of Savarese V.' Ohio Farmers Ins. Co. (260 N. Y. 45), having to do-with disposition of fire insurance, proceeds where the owner has made repairs. A contract of the type sought to be énforced against this defendant as successor in ownership is personal, and does not run with the land. (See, in this .connection, Mortgages and Deeds of Trust, 38 N. Y. Jur., § 137, p. .262; § 139, p. 268; Sheehan v. Spring, Val. Wood Prods,- Corp., 194 App. Div. 119.) This disposition, of course, is without préjudice to whatever other remedies plaintiff may have available. • Concur — Stevens,-P. J., Markewieh, Eupferman and Capozzoli; JJ.