
    .Denis Maher, Appellant, v. The Home Insurance Company of New York, Respondent.
    
      Insurance—action, after an appraisal, to vacate it and recover under the policy — right to judgment for the amount of the award where it is sustained.
    
    Where a loss occurs under a policy of fire insurance and, pursuant to the terms of the policy, the amount of the loss is submitted to appraisers who make an award of a sum less than the amount of the policy, and the owner refuses to accept the award and brings an action upon the policy to recover the. full amount thereof, alleging in his complaint facts tending to show that the award made by the appraisers was invalid, and the court finds that the award was valid and represented the actual amount of the loss, it should not dismiss the complaint, but should award a judgment against the defendant for the damages actually sustained.
    Appeal by the plaintiff, Denis Maher, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 18th day of July, 1901, upon the decision of the court, rendered after a- trial before the court without a jury, dismissing the plaintiff’s complaint upon the merits.
    
      Louis Silberman, for the appellant.
    
      Franklin M. Danaher, for the respondent.
   Parker, P. J.:

On November 20, 1897, the defendant issued a policy of insurance to the plaintiff, whereby it insured him against loss or damage by fire, upon two certain buildings then owned by him in the city of Albany, in the sum of $500 upon each building. On July 15, 1900, such buildings were burned and greatly damaged by fire. Proofs of loss were made by the plaintiff, and a claim for damages under such policy was presented to the defendant company. A difference arose between the parties as to the amount of loss. They thereupon signed the written ■ submission to appraisers, and each party selected an appraiser, as required by the terms of the policy, which was of the standard form used in this State. Such appraisers selected an umpire. Subsequently an award was made, fixing the total amount' of loss iroon such two buildings at the sum of $742.64, and was signed by the appraiser selected by the defendant and by the umpire only, the appraiser selected by the plaintiff refusing to sign it. The plaintiff refused to accept the amount so awarded, although the defendant offered to pay him the same.

Subsequently, and on October 31, 1900, this action was brought. The plaintiff in his complaint has set forth all the facts required to authorize a recovery against the defendant upon the policy, for .all the loss or damages sustained by the fire, and which it was averred exceeded $1,000. He has also averred certain facts which he claimed rendered the appraisal above referred to inoperative and of no force against him. Among such facts was the charge that he was induced to agree to Walsh as the appraiser selected by the defendant, and to Patrick McCann as the umpire, through the false and fraudulent representations of the defendant, and that such men were interested and partial appraisers for the defendant and unjust and unfair towards the plaintiff; also that the said Walsh and McCann acted and made the said appraisement without any notice to the appraiser he had selected, and would not permit the latter to take any part in making such appraisal.

The complaint then charged that no part of such loss had been paid, and that the defendant was indebted to him upon such poUcy in the sum of $1,000, with interest from September 15, 1900. It then proceeded to demand judgment against the defendant, that the award be set aside and adjudged to be void, and that the plaintiff recover from the defendant the sum of $1,000 and interest, as above claimed, with the costs of the action, and for such further relief, etc., as the court should deem just and equitable.

The answer raises an issue over all the allegations tending to show that the award made by such appraisers was invalid, but denies none of the other allegations set forth in the complaint. It also pleaded that the plaintiff had an adequate remedy at law. The case came on for trial at a Trial Term. Facts showing the liability of the defendant to pay under the policy such damages as the plaintiff had actually sustained by the fire were either proven or admitted. Evidence also was given upon both sides as to the actual loss so sustained. At the close of the trial the defendant moved for a nonsuit on the grounds,, among others, that facts had not been proven sufficient to constitute a cause of' action. Also that the plaintiff had an adequate remedy at law. The motion was denied, and upon the suggestion of the court that “ If this award stands, why then it stands as against you (plaintiff), if it fails, then the only question is whether they should have $742.64 or $1,000,” the ease was withdrawn from the jury and left to the decision of the trial judge. Subsequently he made and filed a decision, wherein he found the execution of the policy, the loss by the fire and, substantially, that the plaintiff had performed all the conditions and requirements of the policy on his part. He also found that the .parties entered into the agreement that the damages sustained by the plaintiff be submitted to appraisers, as required by such policy ; that the appraisers and umpire under such agreement were duly named, and that the award made under such submission was a valid and binding one upon both parties. In short, he found in favor of the defendant as to the validity of the award, but against the defendant upon all other questions affecting its liability to pay the damages sustained. He further found that the plaintiff had a comr píete and adequate remedy at law.

He then found, as a conclusion of law, that the plaintiff was not entitled to equitable relief in this action, and that his complaint be dismissed, with costs, and ordered judgment accordingly.

From the judgment so entered this appeal is taken.

This decision seems to have been made upon the theory that this action is one brought by the plaintiff in equity to.set aside the award, so that he might thereafter recover against the defendant upon the policy- for the full amount of the damages sustained; and that, because he had failed to sustain his claim that the award was invalid, his complaint must, be dismissed. The idea seems to have been that, because the facts did not warrant a vacation of the award, the plaintiff could have sued on the policy and in that action at law have obtained all.that he was entitled to. In this, I think, the learned trial court erred-.

The action is one upon the policy, to recover the full amount specified therein, viz., $1,000; and the claim is, that the full damages sustained being moré than $1,000, such amount was due and owing to the plaintiff. But the appraisers selected under the policy having fixed such damages at the sum of $742.64, the defendant might have pleaded that award, as a bar to recovering such full amount. (See Sullivan v. Traders' Ins. Co., 169 N. Y. 213.) The plaintiff, therefore, set forth in the complaint facts showing why such award should be adjudged void and, therefore, no bar to his recovering the amount he claimed.

The prayer to have such award vacated undoubtedly was in the nature of an equitable claim, but still the right to recover at all was upon the policy, and the action itself may well be deemed an action at law, and the equitable relief asked as a mere incident to it.

But it is not of much importance whether the action be deemed one at law or one in equity, for, beyond all doubt, from the facts alleged in the complaint, a judgment for the amount due upon the policy should be awarded. It is a familiar rule that when equity acquires jurisdiction of a matter it will render complete justice between the parties, even though it requires a personal judgment to accomplish it. (Murtha v. Curley, 90 N. Y. 372; Valentine v. Richardt, 126 id. 272, 277.)

In the case at bar all the issues were submitted to the court. All the facts necessary to sustain the plaintiff’s claim for the full amount of his damages being averred in the complaint and having been actually litigated upon the trial, the court should have awarded a personal judgment against the defendant for the amount appearing to be due.

Whether it be deemed a legal or an equitable action, it is clear that such a judgment against the defendant would have been one consistent with the case set forth in the complaint and embraced within the issues, and, therefore, such an one should have been granted. (Bell v. Merrifield, 109 N. Y. 202, 207; Code Civ. Proc. § 1207.)

This method of bringing an action to vacate the award and recover the full amount of the damages sustained is not an unusual one. (See Kaiser v. Hamburg-Bremen Fire Ins. Co., 59 App. Div. 525; Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137, 140.) And in all of such cases the court has decided as to the validity of the award and rendered a judgment for damages accordingly.

In this case the trial judge has found that the award was a valid one and should be sustained. With that finding I am not disposed .to disagree. It might very well be so concluded from the evidence before him. But in the conclusion that the complaint must, therefore, be dismissed, I do not concur. The plaintiff was still entitled to recover for the damages actually sustained, and his action was clearly one for that purpose. At least, a judgment for such damages was clearly consistent with the cause of action set up in the complaint and embraced within the issues tried; and such seems to have been the theory upon which the case was taken from the j nry and submitted to the court.

After determining that the award was a valid one and was binding upon both parties, the decision goes further, and finds that the amount of loss sustained by the defendant on account of the fire was the sum of $742.64, being the same amount as the "award.

On these facts the plaintiff was entitled to a judgment for that amount, and it was, therefore, error to dismiss his complaint.

The judgment must be reversed and a new tidal' granted, costs to the appellant to abide the event.-

All concurred; Eursman, J., not sitting.

Judgment reversed on the law and facts and new trial granted, with costs to appellant to abide event.  