Fowler v. New York Indemnity Insurance

Emott, J., (dissenting.)

It is well settled that the assured in a fire policy must have an interest in the property assured, at the time of the contract of insurance ; otherwise the policy is a mere wager and so void by statute. (See 3 Denio, 303.) It is equally clear that the assured, and by this must be understood the original party making the contract, or any subsequent assignee if it has been transferred, must have an interest in the property insured, at the time of the loss. It may not be precisely the same interest as that held by the assured when the insurance was effected, but it must be an interest in the property, existing in all the parties with whom the contract was made or to whom it has been transferred. [S. C. and 2 Comst. *152216.) The contract is one of indemnity merely, and if the parties claiming its benefits have not been damnified by the injury against which it was intended as a protection, it cannot be enforced for their advantage.

[Kings General Term, October 14, 1856.

In the complaint in this case there is no averment that Caldwell, who effected the insurance and assigned the policy, to the present plaintiff, had any interest in the premises when the policy was made, except what may be included in or inferred from the statement, that he effected insurance on “ Ms” building and on “Ms” wheel; the whole being occupied and used by him as a factory. Possibly we might hold this description sufficient on this point, but the pleading is fatally defective in another. There is no averment whatever that the plaintiff Fowler, to whom the policy is alleged to have been assigned on the 6th of January, 1853, had any interest whatever in the property at the time of the fire, which took place on the seventh of July, 1853. Indeed it may be observed that there is no allegation of any interest of Caldwell the assignor at that time. The provisions of the code as to suits in their own names by assignees of rights of action, have nothing to do with the question. The difficulty is that the complaint does not-show any right of action. The party who held the policy at the time of the fire brings this suit. It was then, if ever, that a right of action accrued; but to that it is necessary that the holder of the policy should be the owner of the property. No such interest in him is shown, and therefore as to him it was a mere wager, and void by statute. If the transfer of the policy had been made after the fire, probably it could be upheld as an assignment of a sum of money due from the defendants. But- that is not the case stated by this complaint. The judgment of the court below should be reversed and judgment ordered for the defendants. The plaintiff to have leave to apply at a special term to amend on proper terms.

Judgment affirmed.

Brown, S. B. Strong and Eniott, Justices.]