
    Henry C. Brown, Resp’t, v. The German-American Insurance Company of New York, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    
      1. Insurance (Eire) — Condition affecting validity of policy—When FULFILLED.
    In an action on a policy of fire insurance, the policy contained a condition that it should be void, “if the assured is not the sole and unconditional owner of the property, * * * or if any change takes place in the title.” A short time before the policy expired, plaintiff’s assignor ' made an assignment for the benefit of creditors. The creditors agreed upon a basis of settlement, and signed a consent that the assignee re-assign the property. Before the policy expired a renewal was delivered to plaintiff’s assignor by one of defendant’s agents. The questions at issue were whether all the creditors signed 'the consent and whether the renewal receipt was delivered before the actual assignment. Held, that the jury having on sufficient evidence found both questions in favor of the plaintiff, it follows that plaintiff’s assignor had a legal title when the renewal receipt was delivered, and a recovery for a loss sustained can be had under the policy.
    2. Same—When no becoveby bob boss had.
    
      Held, that if a loss had occurred while the renewal was in the hands of defendant’s agents no recovery could be had.
    Appeal from a judgment entered upon the verdict of a jury.
    The plaintiff sued the defendant to recover the sum of $3,000 on a policy of fire insurance. The defendant defended on the ground, that at the time of the insurance the plaintiff’s assignor, James O’Connor, was not the owner of the property insured, and that during the life of the policy, the plaintiff had assigned his interest in the property covered by the policy of insurance.
    
      William D. Murray, for app’lt; Donald F. Ayres, for resp’t.
   Barnard, P. J.

On the 9th of December, 1884, the defendant issued to James O’Connor a policy of insurance for one year, on stock of goods, store furniture and house furniture. The policy contained a condition that it should become void, if the assured is not the sole and unconditional owner of the property, * * * “or if any change takes place in the title.”

This policy was obtained by one Keegan, an insurance clerk, who employed a broker in the same office in which he was employed. This broker had requested that all renewals of policies he had procured to be sent to him. A short time before the policy expired, O’Connor became embarrassed, and on the 21st of November, 1885, made an assignment to Henry B. Dwyer for the benefit of creditors.

On the 2d of December, 1885, the creditors agreed upon a basis of a settlement, and signed a consent that the assignee re-assign the property to O’Connor. The formal re-assignment was delivered 23d of December, 1885. Before the policy expired, a renewal was sent Shilton. He delivered it to Keegan, and Keegan delivered it to O’ Conner.

On the 25th of December, 1885, Keegan delivered the renewal receipt to O’Conner.

The only serious question of fact was, first, whether all the creditors signed the consent; and second, whether the renewal receipt was delivered to O’Conner before the actual re-assignment on the 23d of December, 1885. The jury have found both questions in favor of the plaintiff, and upon this finding undisputed facts of the case, the plaintiff, who is t le assignee of the policy, seeks to recover a loss by fire, which substantially consumed the whole insured property on the 2d of January, 1886. There is nothing in this which weakens the former decision that Keegan and Shilton were the agents of the defendant. 10 N. Y. State Rep., 412. If a loss had occurred while the renewal was in their hands, he.would have had no claim.

The delivery of the renewal receipt to O’Connor was, therefore, the time when the policy was renewed, and at that date O’Connor was a legel and equitable owner of the property without conditiou. There was a question when Dwyer & Co. settled with the assignee, whether it was the 23d of December or the 21st of December, 1885, and this fact found by the jury in favor of the plaintiff. Under the former decision, O'Connor had a legal title when the renewal receipt was delivered, and can recover for a loss under the policy. The insured at no time ceased to have an insurable interest in the property. So long as the insured retained an interest, that he may be a sufferer by the loss, the policy remains valid to protect that interest. Hitchcock, v. North Western Insurance Co., 26 N. Y., 68.

The judgment should, therefore, be affirmed, with costs.

All concur.  