
    Joseph B. Besant, Respondent, v. The Glens Falls Insurance Company, Appellant.
    
      Action brought by one of two persons insured, on a fire insurance policy payable to them "as interest may appear”—the complaint is demurrable for defect of parties plaintiff.
    
    Where, by the terms of a policy of fire insurance, the loss is payable to two designated persons “as interest may appear,” one of such persons, alleging “that at all the times hereinafter mentioned plaintiff was and now is the owner by contract of purchase” of the insured premises, cannot maintain an action ■ against the insurance company to recover the entire amount secured to be paid by the policy, when ¡there is nothing in the complaint which negatives the proposition that the other person designated in the policy retains some interest in the premises entitling her to share in the recovery.
    In such a case, the objection that the ¡ilaintiff’s coinsured is a necessary party is available on demurrer.
    Appeal by the defendant, The Glens Falls Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sulli. van on the 8th day of January, 1902, upon the decision of the court, rendered' after a trial at the Sullivan County Special Term, overruling a demurrer to the complaint.
    The single ground of demurrer is a defect of parties plaintiff. The action is upon a fire insurance policy. The policy is attached to the complaint and made a part thereof. The policy of insurance reads: “ The Glens Falls Insurance Company, Glens Falls, New York,, in consideration of the stipulations herein named and of twenty dollars premium does insure Dr: J. B. Besant and Harriet M. N. Gillespie, as interest may appear, for the term of three years * * * against all direct loss or damage by fire * * * to an amount not exceeding two thousand dollars to the following described property * * * ..” - The plaintiff brings this action for the $2,000. He alleges nothing as to the interest of his coinsured, Harriet M. N. Gillespie ; does not claim to be the owner of such interest, or that it has been in any way extinguished; and alleges as to his own interest in the property insured “ That at all t-he times hereinafter mentioned plaintiff was and now is the owner by contract of purchase ” of the insured premises. The demurrer is based upon the ground that the complaint upon its face shows that Harriet JVI. N. Gillespie is a necessary party plaintiff.
    
      Gardozo c& fflatham, for the appellant.
    
      William R. Adams, for the respondent.
   Kellogg, J.:

The contract of insurance was made between the Glens Falls Insurance Company of the one part and Joseph B. Besant and Harriet M. N. Gillespie of the other. It must be presumed that the premium was paid by them jointly. The promise is to pay the sum of $2,000 to them as interest may appear,” meaning the interest of each in the property insured. It is plain that when the policy was issued, by declaration of all the parties, both Joseph B. Besant and Harriet HI. N. Gillespie had each an insurable interest in the property. It seems also to have been contemplated by all the parties that when payment of the $2,000 should be made, both Joseph B. Besant and Harriet M. N. Gillespie should be heard as to what was the interest or proportionate interest of each. It seems also to have been contemplated that the whole-of the $2,000 should not be paid to either without the knowledge of the other. There is nothing in the complaint which negatives Harriet M. N. Gillespie’s right to some interest, in the $2,000; nothing whatever showing a change in the interest of either since the policy was issued, and the policy itself declares that both have an interest in the sum to be paid in case of loss by fire.

The insurance company has no right to determine wh-at sum shall be paid to each, and if iff pays the whole sum to either it must do so at its peril. Admitting all the facts alleged in the complaint, to be true, it still does not appear that Harriet M. N. Gillespie has no interest in the loss or in the sum promised to cover the loss. The allegation that plaintiff, at the time of the issuance of the policy, was, and ever since has been, the'“ owner by contract of purchase ” is not a declaration that Harriet M. N. Gillespie had no insurable interest, nor is it by the most liberal construction a declaration that she has no interest in the $2,000 promised to be paid. ■ She may be mortgagee or may be the owner of the legal title; she may be the vendor in that contract of purchase. The complaint is wholly silent as to what was or what is her interest or what has become of her interest.

This all appears upon the face of the complaint. It is apparent that Harriet M. N. Gillespie is a necessary party plaintiff to determine what sum, if any sum, the plaintiff is entitled to. The promise runs to both, and in an action at law' both must join to have a standing in court upon the promise. Demurrer in such case is the proper practice, unless defendant chooses to waive the defense.

The interlocutory judgment is reversed, with costs, and the demurrer is sustained, with costs, with usual leave to amend the complaint on payment of costs.

All concurred, except Eursman, J., not sitting.

Interlocutory judgment reversed, with costs, and detnurrer sustained, with costs, with leave to plaintiff to amend on usual terms.  