
    Joseph T. Munk, Respondent, v. Maryland Casualty Company, Appellant.
    Second Department,
    January 18, 1907.
    Insurance — plate glass' insurance — effect of election by insurer to repair window — landlord and tenant —.when tenant as assignee of landlord cannot recover damage to goods.
    When a plate glass insurer elects under the policy to repair a broken window, the contract of insurance is superseded by the .contract to repair, and any action of the insured is upon the contract and not upon the policy. Neither the amount of the loss nor the insurance controls the amount of recovery.
    But a tenant of the landlord, who is assignee of the landlord’s rights under the policy, cannot recover of the insurer damages caused to his goods by the delay of the insurer to repair the window.
    The damage to the tenant’s goods is not damage to the landlord, and in an action based on negligence, consisting solely in the breach of a contract, only a.party to the contract, or a person for whose benefit the contract was made, can recover.
    Appeal by the defendant, the Maryland Casualty Company, from a judgment of the Municipal Court of the city of New York, borough pf Queens, in favor of the plaintiff, rendered on the 10th day of November, 1905.
    
      Frederick E. Fishel, for the appellant.
    No appearance for the respondent.
   Jenks, J.:

The action is in the Municipal Court, The defendant issued a plate glass insurance policy to Coleman, covering the show windows of a drug shop leased by Coleman as owner to the plaintiff. The plaintiff’s ease is as follows: On or about March 25th a show window was cracked by an accident. The' defendant was notified and within four days sent over a surveyor to inspect and to measure the window. The defendant did' nothing more for 10 days. During that interval a storm blew in the damaged window, so that certain chattels and drugs of the plaintiff Were damaged or were destroyed. For several days the plaintiff was forced to cover the window with canvas, and to employ a watchman at night to guard his premises. Ilis trade fell off for 4 days at the rate of $2 a day.

I think that we may assume that, irrespective of any covenant or agreement, the landlord undertook the repair, inasmuch as lie" notified the defendant, and the defendant elected under a clause of the policy to replace the damaged window pane. The pleadings are oral, but the plaintiff read in evidence an assignment to him from Coleman, the owner, of all his right, title and interest to the claim and demand that he had against the defendant by reason of any loss which he had sustained in- the said premises.

As the defendant elected to repair, the contract of insurance was superseded by the contract to repair, and hence any action of the landlord ex contractu is upon that contract and not upon the policy. Neither the amount of loss nor of insurance controls the amount of recovery. (Heilmann v. Westchester Fire Ins. Co., 75 N. Y. 7; Morrell v. Irving Fire Ins. Co., 33 id. 429.) The action then is, in effect, by the landlord (for the fact that his assignee is the tenant is but an accident) against the defendant upon its contract to repair. The breach • of the defendant is not omission -to perform, for it did eventually perform. But, in the absence of any express agreement, the law will imply an obligation to perform within a reasonable time, and hence the breach, if any, is the omission of the defendant to perform within that period, for delay. But none, of the damages alleged or proved by the plaintiff is those of the landlord. Indeed it does not appear that he .suffered any loss whatever. If the defendant did the work unskillfully or negligently to the damage of the landlord, then it is quite true that it might be sued by the landlord for the tort. (Tuttle v. Gilbert Manufacturing Co., 145 Mass. 169, 175.)

There are authorities to the effect that the landlord may be held for the negligence of the contractor in the doing of a work of repair. (Malony v. Brady, 18 N. Y. Supp. 757, citing Sulzbacher v. Dickie, 6 Daly, 469 ; Malony v. Brady, 14 N. Y. Supp. 794; Wertheimer v. Saunders, 95 Wis. 573; Myhre v. Schleuder, 108 N. W. Rep. 276. See, too, McAdatn Landl. & Ten. [3d ed.] § 388.) In Malony v. Brady (18 N. Y. Supp 757) the landlord was held entitled upon the doctrine of indemnity to recover of the contractor for the losses paid by the landlord to tenants on account of the eon-tractor’s negligence. But in such case the landlord must establish his liability to the tenant for the shortcomings of the defendant. I am not informed of the plaintiff’s theory of this action, and the oral "pleadings as taken down afford no clue. I have been compelled to infer the theory from the record and from the evidence. I read that the learned counsel-for the plaintiff stated to the court at the outset that his client came into court not only with his own claim, hut as assignee of the landlord. The negligence 'so far as proven by the plaintiff’s case consists merely in the breach of contract, Shearman & Redfield on Negligence (5th ed. § 11,6) state the rule : “ Negligence which consists merely in the breach of a contract will not afford ground for an action by any one except a party to the contract or a person for whose benefit the contract was avowedly made.”

The judgment should be reversed and a new trial ordered, costs to abide the event. ' ■

Hirschberg, P. •!., Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed , and new trial ordered; costs to abide the event. ■  