
    Henry E. Weed, Resp’t, v. The Hamburg-Bremen Fire Ins. Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Insurance (Fire)—Interest op assured.
    Plaintiff procured from, defendant a policy insuring the “ Estate of O. Richards" against loss by fire, loss payable to himself, “mortgagee, as his interest may appear." The policy provided that it .should be void if the exact interest of the assured in the property, whether as owner, mortgagee or otherwise was not truly stated. It was shown that after giving the mortgage to plaintiff, Richards conveyed the property in trust for his creditors, with a residuary clause in his favor, and continued to occupy the property until his death insolvent. Held, that it was the interest of plaintiff as mortgagee that was insured and not that of the estate, that it was properly stated in .the policy, and that the fact that he had recovered a judgment of foreclosure did not preclude a recovery upon the policy.
    Appeal from a judgment entered upon a verdict directed for the plaintiff upon the trial at the Rensselaer circuit.
    
      A. H. Sawyer, for app’lt; G. B. Wellington, for resp’t.
   Landon, J.

—The policy insured “Estate of 0. Richards” against loss by fire on “their grist mill,” and fixed and movable machinery. “Loss, if any, payable to Henry E. Weed, mortgagee, as his interest may appear.” The policy contains this clause: “If the exact interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated in the policy, then and in every such case this policy shall be void.”

The defendant insists that the “Estate of 0. Richards” is insured, and not the mortgage interest of the plaintiff, and that the plaintiff is the mere payee of the loss sustained by the estate, and the policy is void under the clause quoted, for the reason that the-exact interest of the assured is not truly stated. Weed v. London & Lancashire Fire Ins. Co., 116 N. Y., 114; 26 N. Y. State Rep., 414, is relied upon in support of this contention. That was a case in which tins plaintiff sought a recovery upon the same loss-upon a policy concurrent with this, in which also the policy insured the Estate of 0. Richards, loss, if any, payable to this plaintiff as his claim might appear.

The case cited was decided adversely to the plaintiff because the policy in that case contained a clause which is absent in this, namely, that if the interest of the assured in the property was other than the entire unconditional and sole ownership thereof, the-policy should be void; the referee found it was other than ther entire unconditional and sole ownership thereof and the court of appeals held the policy never had any force. The present case is-different.

In the present case evidence was given tending to show that the plaintiff insured his mortgage interest and that the words “ Estate of 0. Richards” were merely in identification of the property insured. It was shown that in 1854 0. Richards bought the-property; that in 1873 he and his wife gave the' plaintiff the mortgage upon which this policy rests; that there remains unpaid, upwards of $12,000 upon the mortgage; that in 1875 Richards and wife conveyed this and other property to Dean Sage subject to this mortgage, but in trust to hold, enjoy and dispose of the-same, and collect the rents and income thereof while unsold, and apply the net rents meanwhile, and the net proceeds of sale-ultimately, after payment of incumbrances, to the benefit of Richards’ creditors, with a residuary clause in favor of Richards ; that Richards, notwithstanding such conveyance, continued to-occupy said premises, claiming to own them, until his death, which occurred in 1879 ; that he died insolvent and intestate, leaving a. widow and three sons surviving him, of whom one is administrator of his estate; that in November, 1881, the plaintiff applied for and procured this policy of the defendant; that he paid the premium; that no one representing the estate of 0. Richards had anything to do with it; that plaintiff obtained the policy through, defendant’s agent, D. B. Ketchum, who resided near the property. No request was made by either party to submit any question of fact to the jury, but each party requested the court to direct a verdict in his favor. The court directed a verdict in favor of plaintiff, holding that “it was here the intention to insure under this policy the insurable interest of Henry E. Weed, mortgagee, and that the case therein differs from the one cited, in which the referee found the fact to be otherwise.” A verdict thus directed settles the facts in favor of the party obtaining the verdict. Sutter v. Vanderveer, 122 N. Y., 653; 34 N. Y. State Rep., 211; Dillon v. Cockcroft, 90 N. Y., 649. We think the verdict is justified by the evidence. It would be perplexing for the ordinary business man to state in the usual brevity employed in insurance policies the exact ownership of this property at the date of the policy. But there was no question about the plaintiff’s mortgage; it was given before the title became involved in any intricacy; the plaintiff desired to insure his own interest; whether the interest subsequent to his own was insured or not was no concern of his he bought the insurance he wanted, he could not with confidence name the person who owned the property, but he could identify it, and give to the defendant the means of finding out, by designating it as of the “ Estate of 0. Richards,” and he could state exactly and truly whether his own interest which he desired to insure was that of owner, mortgagee, trustee, agent, or otherwise, and he did so, and thus completely satisfied the limited kind of exactness which the clause first above quoted from the policy required of him. It was competent for him to insure his own interest in the manner which he employed. Thomas v. Montauk Fire Ins. Co., 43 Hun, 218; 5 N. Y. State Rep., 481; Pitney v. Glens Falls Ins. Co., 65 N. Y., 6; Dakin v. Liverpool, etc., Ins. Co., 77 id., 600. If there was any doubt whether he intended to do so, that doubt arose from the ambiguity of the words “ Estate of 0. Richards," and from the extrinsic evidence which it was proper tó resort to in order to enable the court to understand the circumstances under which the policy was given, to the end that it might be properly .construed and effect given to the intention of the parties. The verdict settled the doubt in the plaintiff’s favor.

The defendant cites several cases, of which Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391, is the leading one, and argues from them that the plaintiff insured the interest of the estate, and not his own, and that as it was held in 116 N. Y., that the estate had no interest because of the deed from Richards to Sage, therefore the plaintiff as the mere payee of the loss can take nothing. The cases referred to state the rule where the owner insures his property and directs that the loss shall be payable to his creditor. They do not apply to a case in which the incumbrancer insures his own interest.

The defendant contends that the plaintiff did not state his exact interest truly in stating that he was mortgagee. This contention is based upon the further .fact proved in the case that in 1877 the plaintiff obtained a judgment of foreclosure upon his mortgage, but never proceeded to sale. We have already called attention to the peculiar kind of exact statement of his interest which the policy required the plaintiff truly to make. It was to distinguish by his statement exactly and truly which of several interests he had, whether that of owner, mortgagee, trustee, etc.; no more. He was a mortgagee with a judgment of foreclosure. But the policy said “ mortgagee as his interest shall appear,” thus leaving to appear, when the loss should occur, what further was necessary to define its status among the various kinds of mortgage interests.

It may be true that the mortgage was technically merged in the judgment, but it is also true that the judgment is simply a step to enable the mortgagee to realize his mortgage interest. It would be gross injustice to defeat an honest claim upon some nice distinction in the refinements of legal nomenclature, wholly irrelevant to the merits of the controversy.

But if we should assume that the plaintiff insured the estate of 0. Richards for his own benefit, the case would be free from the difficulty which defeated the plaintiff in the case in 116 H. Y., and would be assisted by the rules there enumerated. This case is free from the fatal clause of the policy of that case, and free from the adverse finding of the referee. Here the verdict is in plaintiff’s favor; the restriction in the policy presents no difficulty ; the evidence is ample to uphold the finding that the expression “Estate of 0. Richards” embraces that of the trustee, heirs and administrator ;. that it was intended to be a comprehensive term, embracing all who, severally or together, were needful to make the statement that they were owners exact and truthful, and ample to protect the mortgage interest of the plaintiff “as it .should appear.”

As the plaintiff bought the insurance he is entitled to recover upon it. Pitney v. Glens Falls Ins. Co., 65 N. Y., 6.

We think the objections respecting notice of loss and proofs of loss, and the offer of the defendant to prove by oral testimony that the plaintiff held the mortgage as trustee for the bank of which he was president, were properly disposed of by the trial ■court.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  