Brown v. German American Insurance , 1 Silv. Sup. 578 ( 1889 )

Barnard, P. J.

On the 9th of December, 1884, the defendant issued to James O’Conner a policy of insurance for one year on a stock of goods, store furniture, and house furniture. The policy contained a condition that it should become void if the assured is not the sole and unconditional owner of the property, or if any change takes place in the title. This policy was obtained by one Keegan, an insurance clerk, who employed a broker in the same office in which he was employed. This broker had requested that all renewals of policies he had procured be sent to him. A short time before the policy expired, O’Conner became embarrassed, and on the 21st of Hovernber, 1885, made an assignment to Henry B. Dwyer for the benefit of creditors. On the 2d of December, 1885, the creditor agreed upon a basis of a settlement, and signed a consent that the assignee reassign the property to O’Conner. The formal reassignment was delivered 23d of December, 1885. Before the policy expired, a renewal was sent Shilton. He delivered it to Keegan, and Keegan delivered it to O’Conner. On the 25th of December, 1885, Keegan delivered the renewal receipt to O’ Conner. The only serious questions of fact were —First, whether all the creditors signed the consent; and, second, whether the renewal re'ceipt was delivered to O’Conner before the actual reassignment on the 23d of December, 1885. The jury have found both questions in favor of the plaintiff, and upon this finding, and the undisputed facts of the case, the plaintiff, who is the assignee of the policy, seeks to secure a loss by fire which substantially consumed the whole insured property on the 2d of January, 1886. There is nothing in this which weakens the former decision that Keegan and Shelton were the agents of the defendant. 10 N. Y. St. Rep. 412. If a loss had occurred while the renewal was in their hands, they would have had no claim. The delivery of the renewal receipt to O’Conner was therefore the time when the policy was renewed, and at that date O’Conner was a legal and equitable owner of the property without condition. There was a question when Dwyer & Co. settled with the assignee,—whether it was the 23d of December or the 21st of December, 1885,—and this fact was found by the jury in favor of the plaintiff. Under the former decision, O’Conner had a legal title when the renewal receipt was delivered, and can recover for a loss under the policy. The insured at no time ceased to have an insurable interest in the property. So long as the insured retained an interest that he may be a sufferer by the loss, the policy remains valid to protect that interest. Hitchcock v. Insurance Co., 26 N. Y. 68. The judgment should therefore be affirmed, with costs. All concur.