Hine v. Homestead Fire Insurance

Hardin, J.: In the policy of insurance were the following words, viz.: “ If the interest of the insured therein be changed in any manner, whether by act of the insured or by operation of law * * * then, and in every such case, and in either of said events, this policy shall be null and void until the written consent of the company at the home office is obtained.” And when John Brouilltt died, March 2, 1878, there was a change of the interest of the assured, which under the policy caused an avoidance of it, subject only to the right of. the parties interested in the property to apply for and receive the “ written consent of the company ” or its receiver. (Lappin v. Charter Oak-Fire Ins. Co., 58 Barb. 325; Sherwood v. The Agricultural Ins. Co., 73 N. Y., 448; S. C., 10 Hun, 593.) It is urged that the company at the time of death of the insured “ could not consent ” to the change of interest, and that as the company was in the hands of the receiver it could not consent. We cannot agree with the learned counsel for the appellant, as we are of the opinion that had the receiver been applied to he would have possessed the power and had the right to consent to a continuation of the policy. [86] It would have been clearly his duty to give such consent or else to return the unearned premiums which the company or the receiver held. Nor can we disregard the language of the policy we have quoted, because in the early part of the policy are found the words, viz.: “ Said company do hereby promise and agree to make good unto the said assured, his heirs, executors, administrators and assigns, all such loss,’-’ etc. Full effect may be given to all the language of the policy. In case the consent had been obtained after the death of the insured, then the policy and its promise would have been good to the heirs. If the loss had happened in the lifetime of the insured, and before its payment his property had passed to “ heirs, executors, or to administrators or assigns,” then the language would be called into requisition to effectuate the intent of the parties. We cannot give such signification to the word “heirs” as the contention of the appellant demands, in order to nullify the stipulation we have quoted from the policy in respect to any change of interest. We do not find such intent of the parties from a careful consideration of all the language of the policy, nor can we hold the policy valid to the extent of the beneficial interest ■ of the mortgagee. He was merely the appointee of the insured, and it was intended that he should receive, instead of the insured, so much of any loss that should happen as would satisfy his mortgage. Whatever avoided the policy as to the insured avoided it as to the appointee or mortgagee. (Grosvenor v. The Atlantic Ins. Co., 17 N. Y., 391; Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 id., 401; Richmond v. The Niagara Fire Ins. Co., 15 Hun, 248; Van Alstyne v. Ætna Ins. Co., 14 id., 360; Bidwell v. Northwestern Ins. Co., 19 N. Y., 179; Perry v. Lorillard Fire Ins. Co., 61 id., 214; Hastings v. Westchester Fire Ins. Co., 73 id., 149.) Question is new, and therefore we may withold costs. Order was right and must be affirmed. Smith, P. J., concurred; Present — Smith, P. J., and Hardin, J. Order affirmed, without costs to either party.