
    William F. Lett, App’lt, v. The Guardian Fire Ins. Co. Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    Insurance (fire)—Assignment of policy—Consent of company necessary.
    An insurance policy was issued by defendant to Briggs, owner of the property, loss, if any, payable to Butler, mortgagee. The property by mesne conveyances came to plaintiff, to whom Briggs executed an assignment of his interest in the policy, endorsed upon the duplicate of the instrument in his possession. No consent, however, was endorsed by the company thereon, though such consent was bv the agreement of insurance made a condition of its continuance in force. Held, that the policy was not a live instrument in the hands of plaintiff and its assignment brought no rights of action to him.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment recovered upon the dismissal of the complaint at circuit.
    
      G. A. Clement, for app’lt; K B. Hoxie, for resp’t.
    
      
       Affirming 24 N. Y. State Rep., 658.
    
   Gray, J.

The policy of insurance, upon which this plaintiff seeks to recover against the insurance company, was not a live instrument in his hands. Its assignment brought no rights of action to ^ him. The facts would seem to establish these propositions without the need of argument. The policy was issued to Briggs, as the owner of the property, and the loss, if any, was made payable to Angelina Butler, as mortgagee. Subsequently, Briggs, the owner and mortgagor, conveyed to another the premises, subject to the mortgage, and the grantee in turn similarly conveyed to plaintiff. At the time of the conveyance to plaintiff, Briggs executed to him an assignment of his interest in the policy, endorsed upon the duplicate of the instrument, which he had in his possession. Wo consent, however, was endorsed by the company thereon covering the change of interest, though such a consent was made,, by the agreement of insurance, a condition of its continuance in force. It was, undoubtedly, competent for the company’s officers to continue the obligation of the company by a paroi consent, as well as by a written consent; but the proof does hot, in my opinion, amount to any evidence at all 'of a consent on the part of the company to the change of interest; or to a waiver of the condition contained in the policy in that respect. The plaintiff thinks he can overcome this difficulty, however, and argues the possibility of an inference being deducible, from the facts, of a consent by the defendant to the change of interest. But all there is of that, is, that when the policy was taken by'plaintiff’s broker to the office and the demand made for an endorsement of a consent to the change of interest, the officer, in returning it, said that it had been cancelled. Upon this plaintiff took out a policy for the same amount in another company, and, also, demanded from Briggs a return of the allowance for premium made to him upon the transfer of the policy. These acts evidenced his acquiescence in the statement of the officer. But plaintiff’s counsel insists that his client was misled by the officer’s statement, and that the case shows an admission that the policy had not been cancelled, and, therefore, the conduct of the officer in so returning the policy, when presented for the consent to the change in ownership, was, for absence of words of refusal to consent, susceptible of the inference that if the policy had not been cancelled the company’s consent would be given. That is not sufficient for his case. To supply the want of the formal consent in writing the proof must show, or tend to show, some waiver of the condition, or a paroi consent For such to be inferred there must be some evidence of language or facts expressive of a waiver,_ or of consent. There was nothing more here than the statement that the policy had been cancelled. This was not language expressive or pregnant of assent to anything at all. The plaintiff’s counsel misapprehends the effect of such a contract. A policy of insurance is distinctly a personal contract, by which the insurer undertakes to indemnify the party named in the writing against loss, in a manner and subject to conditions therein described. The obligation does not pass with the insured property to an assignee or purchaser thereof without the consent of the insurer. Such a consent alone can keep in life its agreement. This is a rule which is of long standing and needs no discussion. Lynch v. Dalzel, 4 Brown’s Parliamentary Cases, 431; Ætna Fire Insurance Co. v. Tyler, 16 Wend., 397; Marshall on Insurance, 800; Savage v. Howard Ins. Co., 52 N. Y., 502, 508.

When Briggs conveyed away his interest in these • premises the obligation of the defendant ceased as to any indemnification of the owner of the premises and could not be "revived, save by some act of the insurer evidencing an assent to a resumption of the obligation in favor of the new party in interest, or, what is practically the same thing, evidencing a new contract with him. When Briggs assigned to plaintiff his interest in the policy, he had no insurable interest, as matter of fact. The subject of the insurance had passed from his ownership, and the relations of insurer and assured had become dissolved by the acts of the assured. Nor can plaintiff derive any right of action upon this policy through Angelina Butler, the holder of the mortgage. Upon the settlement of the fire losses the several insurance companies that had risks upon the property, and whose policies she held, excepting, of course, this defendant, paid her the insurance moneys., Of these she applied a portion in reduction of the bond and morgage indebtedness and the balance she handed over to plaintiff. Subsequently she assigned the bond and mortgage to Abbott, and at the same time assigned over to him this policy. Abbott handed the instruments to plaintiff, who thus became possessed of the policy which Briggs had previously assigned to him by endorsement upon a duplicate thereof. The plaintiff, however, was no better off then than before. Briggs had no assignable interest, the company had not consented to a change of interest to plaintiff, nor had it waived the condition of its obligation, and Angelina Butler, to whom the loss had been made payable, had no claim under the policy. She had been otherwise settled with as to insurance upon the property. She had, as matter of fact, turned over a portion of the insurance moneys to this plaintiff, resting content with the security which the land afforded her for the payment of the balance due on the bond. Moreover, the doctrine of subrogation could be successfully invoked by the defendant in defense of this action if based on the assignment from the mortgagee. By the terms of the policy, the insurer was entitled to be legally subrogated to the mortgagee’s rights under the securities held collateral to the mortgage debt, to the extent of any payment made to the owner where any liability to him as owner of the premises was disputed.

Therefore, if the company was made to pay any moneys to plaintiff, as the assignee of Mrs. Butler, it could claim reimbursement from him out of the mortgaged property, for the reason that he was not possessed as owner of any legal rights under the policy against the insurer. The existence of this right amounts to an equitable bar to the maintenance of an action by plaintiff upon any claim under Mrs. Butler’s assignment.

The complaint was properly dismissed and the judgment should be affirmed, with costs.

All concur.  