Roussel v. St. Nicholas Insurance , 41 Jones & S. 279 ( 1876 )

Sanford, J.

— As mortgagee of the steam-tug, the plaintiff had an insurable intérest in her (Phil, on Ins., 41, 64; Traders' Ins. Co. agt. Roberts, 9 Wend., 404). The complaint expressly avers such interest to have existed at the time of effecting the insurance. The legal presumption is, that such interest continued until the time of the loss (Bank of Auburn agt. Roberts, 44 N. Y., 192). But the defendant insists that the complaint should have averred the existence of an insurable interest at the time of the loss, and that the absence of an express averment to that effect cannot be aided by inference or intendment, nor by presumptions or conclusions of law. The rule, however, is well settled, that what is necessarily implied need not be in terms alleged.

The averment of the plaintiff’s lien, and that defendants gave .the policy on the property with the intention to secure against loss the interest which plaintiff held in such property (the fact of such interest being well known to defendant), is admitted by the demurrer. If denied, it would be sustained by the production and proof of the mortgage and policy, and such proof would throw upon thp defendant the burden of showing that the plaintiff’s interest had ceased at the time of loss.

Whatever must be proved should be averred, but the averment, while it should be commensurate with, need not exceed the required proof.

The action was well brought by the plaintiff in his own name. He was the real party in interest (Code, sec. 3).

At common law, if an instrument be not under seal, the party for whose sole benefit it is evidently made may maintain his action thereon, in his own name, although the engagement be not directly to or with him (1 Chitty's Pl., 5; Schermerhorn agt. Vanderheyden, 1 J. R., 139). In Evins agt. Harmony Fire Insurance Company (3 Bosw., 517), it was held that the owner of the equity of redemption could not recover upon a similar policy, while the mortgagee remained unpaid, and for the reason that the mortgagee had the absolute right to recover the loss.

In contemplation of law there is created a privity of contract between the promisor and the party who alone has a beneficial interest in the performance of the promise.

Morris and Lewis are not necessary parties to the action.

The controversy between the parties before the court can be determined without prejudice to any rights of theirs, and a complete determination of the controversy can be had without their presence (Code, sec. 122).

The misuse of the word “ accepted ” for “ excepted,” in the allegation that the fire was not caused by any of the accepted risks, is manifestly a mere orthographical error, by which defendants have not been misled. Such mistakes may be corrected at any time, and should be disregarded. They do not render pleadings demurable.

The order appealed from should be affirmed, with costs.

Cuktis, J., concurring.