
    Columbus Dry Goods Company, Appellant, v. The Globe and Rutgers Fire Insurance Company, Respondent.
    First Department,
    April 8, 1909.
    Insurance — pleading—allegation of ownership — other insurance — affirmative defense.
    Where the complaint in an action to recover on a policy of fire insurance alleges that “down to the time of the fire” the plaintiff was the owner of certain property, it sufficiently states that plaintiff was the owner of the property at the time of the fire.
    An allegation that the plaintiff’s loss by fire was at least $24,000 and that it had insurance aggregating over $88,000 in addition to the policy sued on, cannot be construed as a statement that plaintiff has obtained satisfaction for its damage from the other insurance. The fact that the plaintiff has obtained satisfaction for the loss from other insurance is a matter of affirmative defense.
    Appeal by the plaintiff, Columbus Dry Goods Company, from a judgment of- the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 20tli day of Hovember, 1908, upon the dismissal of the complaint by direction of the court at the opening of the case upon a trial at the Hew York Trial Term.
    
      Learned Hand, for the appellant.
    
      Charles D. Cleveland, for the respondent.
   Ingraham, J.:

The defendant took two objections to this complaint, which its counsel designated as technical, but which we think are frivolous. The action is brought to recover upon a policy of fire insurance upon personal property contained in a five-story metal-roofed build iiig located in the city of Columbus, O. The complaint alleges that “at the times hereinafter mentioned, down to the- time of their destruction by fire, as hereinafter set forth, the plaintiff was the owner of certain fixtures and other personal property in a building then occupied by the plaintiff and known as Mos. 168 to 178 Morth High Street, Columbus, Ohio,” and the first objection is that the allegation “ down to the time of their destruction by fire ” is not an allegation that the plaintiff was the owner of the property at the time of the fire.

The allegation is that the plaintiff was the owner of the property down to its destruction by fire, and after it was destroyed there was certainly no property to be owned by the plaintiff or anybody else. If the plaintiff owned it down to its destruction it could never have been owned by any one else, for when it was destroyed it ceased to be property at all which was subject to ownership, and it was for the loss caused by the destruction by fire of the property which the defendant undertook to insure against. As the plaintiff owned the property until it was destroyed the defendant then became liable for the damage sustained by the plaintiff in consequence of such destruction.

The second point is presented by the allegation of the complaint that “ the true and actual cash value of the said property so insured at the time of the destruction thereof and damage thereto, was at least the sum of Thirty-seven thousand ($37,000) dollars, and that the loss sustained by plaintiff from ¡such fire was at least the sum of Twenty-four thousand ($24,000) dollars,” and that the plaintiff had insurance on the property insured aggregating the sum of $33,245.75, in addition to said binder or contract of insurance issued by the defendant .upon the said property, and the objection is that it appears on the face of the complaint that the plaintiff has suffered no loss, as the insurance upon the property was $33,000 and the loss $24,000.

There is no allegation that the plaintiff has collected upon this insurance the amount .of the loss, and there is nothing suggested in the complaint that because the insurance had actually exceeded the loss the defendant company should be • exonerated from liability while the other companies are to be held for more than the proportion of the loss which each policy bears to the total amount of insurance. The complaint alleges that the defendant is a domestic corporation, organized under the laws of the State of Hew York, and is engaged in business within the States of Hew York, Ohio and elsewhere. If there is any presumption at all as to the form of the policy it should be assumed that the policy is the standard policy prescribed for insurance by Hew York corporations; but assuming that there is no presumption as to the form of the policy the defendant was liable under its policy for the loss that the plaintiff sustained in consequence of the destruction of the property insured by fire. If the plaintiff had obtained satisfaction of that loss from other insurance upon the property it was an affirmative defense, and the mere allegation of other insurance which equalled the loss cannot by any construction be turned into an allegation that the plaintiff has obtained a satisfaction of its damage from such other insurance.

We think the dismissal of the complaint was clearly error and that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.

Judgment-reversed and new trial ordered, costs to appellant to abide event.  