Green v. Homestead Fire Insurance

Hardin, J.:

The mechanics’ lien filed was not a specific incumbrance, and were we satisfied to follow Owen v. Farmers’ Joint Stock Ins. Co. (57 Barb., 525), it might be declared not an incumbrance upon the property. We prefer, however, to consider another view of the point involved.

The mere filing of the notice under the mechanics’ act would not give a right to a judgment. The subsequent steps must be taken prescribed by the statute. (Laws of 1873, chapter 489.) The judgment to be given under that act “ establishes the amount” of the liens. (Section 11, Laws of 1873, chap. 489, p. 746.)

But the language of the policy under consideration is : “Nor if without written consent hereon, the property shall hereafter become incumbered in any way ’’ shall the company be liable.

This provided for a forfeiture, and must be strictly construed against the insurer. (Hitchcock v. North-Western Ins. Co., 26 N. Y., 70; Kitts v. Massasoit Ins. Co., 56 Barb., 182.) The first part of the clause contemplates obtaining “consent of the company.” The proof here does not show that knowledge was obtained by the assured of the filing of the lien prior to the fire. How, then, could he have obtained “consent” contemplated by the first part of the clause under consideration ? The language is to receive construction, in the light of the objects to be obtained by the parties by its use, and the circumstances surrounding them. It contemplated any “ incumbering ” by the party insured ; any voluntary act of incumbrance. (Wood on Insurance, § 326, p. 552; Strong v. Manf. Ins. Co., 10 Pick., 40; Franklin v. Findley, 6 Whart. [Penn.], 483.)

There was no incumbrance put upon the property by the assured, and he is not shown to have known of th& filing of the mechanics’ notice. He did not voluntarily incumber the property, nor have any opportunity, after he had notice of it, to obtain the “ consent” of the company. We may, therefore, hold that the property was not incumbered by the party, nor did it become incumbered within the spirit and letter of the stipulations found in the policy. There was no change in the interest of the assured shown. (Ætna Ins. Co. v. Tyler, 16 Wend., 385; Hitchcock v. N W. Ins. Co., 26 N. Y., 70; 56 Barb., 182, supra; Savage v. Howard Ins. Co., 52 N. Y., 506.)

The judgment at the circuit should be affirmed.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.