The release executed by the plaintiffs was only intended to operate on the wife’s estate in the premises so far as to allow the mortgage executed by Jacob H. Mott and wife to have priority over her interest, and *118the lien of the mortgage was the same as if they had executed it instead of Mott. The plaintiffs then had a right to all the defenses which Mott could make, and could claim the benefit of all payments which were made, whether received from Mott or themselves. If the insurance had been made in this case by the bank for its benefit, Mott would have had no claim to the proceeds, but the bank would have been entitled to the whole recovery. If Mott had made the insurance and transferred the policy to the bank as security, it would not be doubted for a moment that in case of a recovery upon it by the bank it would be bound to credit the amount received on account of fhe indebtedness due the bank. In the present case the bank charged Mott the whole premium for three years, and included the amount as part of the principal of the mortgage. This, then, if the policy had been obtained, would have been an insurance paid for by the mortgagor as additional security for the payment of the moneys due on the mortgage, and in case of loss he would have in like manner been entitled to credit for the amount recovered. The bank was bound to insure, having charged Mott with the premium. It did not do so for three years, but it is apparent it so understood its obligations, for it effected an insurance for $55,000 for one year. The Judge then finds that it elected to take the risk itself, neglected to pay the premium for the next year, and the joolicies expired. -
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. If it should be said the bank could not be insurer for want of power, the answer is that it is immaterial whether the bank is Charged as insurer or as guilty of negligence in not making the insurance. The amount the plaintiffs are entitled to be credited on the mortgage would be the same. I think the Justice erred in not so finding, when requested by the plaintiffs’ counsel.
Even admitting that the judge was right in holding there *119was no express agreement to insure, and therefore the defendant was not bound to insure (to which I do not assent,) still it is apparent the defendant has received from the plaintiffsj or claims to have a right to receive from them, a portion of the premiums to which it has no right, and which, if it was not hound to insure, would be a recovery of more than the debt due it and legal interest. If it was not hound to insure, it should at least have credited the plaintiffs with the premium not paid for insurance.
[New York General Term, November 6, 1865.There is no view of this case in which the judgment can he sustained; on the contrary, I think the plaintiffs are entitled to the relief asked for.
Judgment reversed, and a new trial ordered; costs to abide the event.
Ingraham, Leonard and Geo. G. Barnard, Justices.]
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