
    Harris B. Adler, Respondent, v. The Germania Fire Insurance Co., Appellant.
    (City Court of New York — General Term,
    January, 1896.)
    Fire insurance — Incumbrances — Chattel mortgage.
    A chattel mortgage which is merely delivered in escrow and becomes a nullity by the fulfillment of the condition upon which it was so delivered is not an incumbrance within the meaning of a clause in an insurance policy making the same void if the property becomes incumbered.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict.
    Action upon a policy of fire insurance.
    
      
      Ernest Hall, for appellant.
    
      J. L. Weinberg, for respondent.
   Fitzsimons, J.

In view of the charge of the trial justice the jury must have determined that the chattel -mortgage was delivered by the plaintiff’s assignor to the lawyer, Gretsch, and held by him in escrow until the delivery of the indorsed notes, which occurred on October 24,1893, the time fixed for their delivery.

Upon the occurrence of that event said chattel mortgage . was to be redelivered to the plaintiff’s assignor; it would thus appear that said mortgage never had a legal existence, and, therefore, the provision in the policy of insurance herein sued upon was never violated.

There is ample evidence in plaintiff’s behalf that would justify the jury in finding that said instrument was not to have legal vitality unless saifi indorsed notes were not delivered as agreed upon.

That it was merely delivered in escrow and subsequently became a nullity because of the compliance by the plaintiff’s assignor with the condition just mentioned. I think it was proper to allow the testimony which was objected to by the defendant’s attorney showing that the chattel mortgage was delivered in escrow, as in no other way could that fact be proven.

The jury having so determined the question just mentioned, i. e., that the mortgage was held in escrow and subsequently became a nullity as above shown, their verdict was certainly justified by the evidence, which would have entitled them to find in even a larger amount in plaintiff’s favor.

Defendant’s appeal (judging from its brief) seems to be based upon the theory that a reversal should be had herein because the insured property became incumbered by a chattel mortgage while insured.

As we have pointed out, the jury must have determined under the judge’s charge, as before stated, that the insured never has so incumbered, and thus it appears to us that the jury found exactly contrary to appellant’s contention and they had a right to so do under the evidence.

We have carefully read over the appeal record, and in our judgment it shows no error that would justify us in reversing the judgment, and it is, therefore, affirmed, with costs.

McCarthy a,nd Bctty, JJ., concur.

Judgment affirmed, with costs.  