Citation Numbers: 35 N.Y.S. 449, 89 Hun 329, 96 N.Y. Sup. Ct. 329, 69 N.Y. St. Rep. 858
Judges: Follett
Filed Date: 10/18/1895
Status: Precedential
Modified Date: 1/13/2023
This action was brought to recover damages for •the breach of a covenant to insure. There is no dispute about the facts. The sole question involved is the amount of damages, if any, ■that the plaintiff is entitled to recover. The plaintiff is the owner •of the Berkshire Paper Mill, which, March 16, 1889, it leased to Allen F. Hand, the defendant’s testator, for one year from May 1, 1889, for the rent of $1,000 and all taxes assessed on the premises during the year. The lease contained this covenant:
“The said Hand is to procure at once, and keep in force, insurance on said property for the benefit of said bank, in the sum of ten thousand dollars, in - such companies as said bank shall approve.”
The lessee entered into possession of the premises, and occupied them until August 4, 1889, when the mill was destroyed by fire. The lessee failed to insure the mill against loss or damage by fire, which is conceded to have been worth $10,000 when destroyed. In the pleadings the fire is alleged to have occurred August 4th, but in the case it is stated to have happened August 14,1889. On the first trial the court directed a verdict for the plaintiff for $10,000, with interest from the date of the fire, and a judgment was entered, which was reversed by this court on the ground that the value of the property destroyed, not exceeding the amount of the policy, was not the measure of the plaintiff’s damages, but that the cost of procuring a policy for $10,000 was the true measure of damages. 80 Hun, 584, 30 N. Y. Supp. 508. There being no evidence on the first trial the cost of such a policy, the judgment, instead of being modified, was reversed. On the second trial (the one under review), it was shown that a policy for $10,000 would have cost $600. At the close of the case the court was asked to direct a verdict in favor of the plaintiff for $10,000, with interest thereon from the date of the fire, which was refused, and the plaintiff excepted. The court was also asked to direct a verdict for the plaintiff for $600, the premium on a policy for $10,000 for one year, which was refused on the ground that the plaintiff, not having paid that sum, could not recover, to which ruling the plaintiff excepted. Thereupon, upon the defendant’s motion, the complaint was dismissed on the merits, and the plaintiff excepted.
The authorities do not agree as to the true measure of damages for the breach of a covenant to insure. Dodd v. Jones, 137 Mass. 322, did not arise out of a breach of an executory covenant, but from the breach of a contract of sale of an insurance policy. In that case the defendant sold a house to the plaintiff, which was covered by a policy of insurance having some time to run, which the defendant agreed to assign to the plaintiff, but afterwards refused to make the transfer. During the life of the policy the house was damaged by fire, and in an action brought to recover damages for the breach of this contract, it was held that the plaintiff was not entitled to recover the damages caused by the fire, but was entitled to recover
“The bank, under these facts, must be considered as insurer, and liable to the same extent as the insurance company would have been if the policies had been continued by payment of the premium for the succeeding year."
In Ainsworth v. Backus, 5 Hun, 414, the plaintiff obtained a policy on the life of her husband and assigned 60 per cent, thereof to the defendant, who agreed to keep the policy alive for the benefit of the plaintiff, but failed to perform his engagement, and the policy was forfeited. In an action brought for damages by the vdfenduring the lifetime of her husband, it was held that the refusal to allow the plaintiff to show that the policy was worth $250 was an error, for which a new trial was granted. In Ela v. French, 11 N. H. 356, the plaintiff consigned books to the defendant for sale on commission, who agreed to cause them to be insured. He neglected to procure an insurance, and the books were destroyed while in his possession, and it was held that, for the breach of this promise, the plaintiff was entitled to recover the value of the books lost. In Miner v. Taggert, 3 Bin. 205, and in French v. Reed, 6 Bin. 308, it was held that an agent of a principal, who neglects his duty to insure the property of this principal, which is lost, is liable for its value, not exceeding the amount for which it should have been insured. In Morris v. Summerl, 2 Wash. C. C. 203, Fed. Cas. No. 9,837, it was held that a merchant who is directed to insure the goods of his correspondent, and neglects to do so, is liable in case of loss as an insurer. This judgment was affirmed by the supreme court of the United
But, whatever the rule may be in other jurisdictions, we are bound by the judgment of this court on the former appeal, where it was held that the measure of damages was the sum which it would cost the plaintiff to have procured a policy for the stipulated amount; and under that decision the trial court erred in not directing a verdict for the cost of such a policy.
The judgment should be reversed, and a new trial granted, with costs” to the appellant to abide the event.
VAN BRUNT, P. J., and O’BRIEN, J. We think original decision right, and concur in result.