In an action for a declaratory judgment defendant-appellant St. Paul Fire and Marine Insurance Company appeals from an order granting summary judgment to plaintiff and the judgment thereon.
Defendant on February 18,1956 issued to plaintiff a Jewelers’ Block Policy insuring against loss by theft of articles of jewelry. Plaintiff sustained a loss on November 21, 1956. Proof of loss was made January 2, 1957 and on January 3, 1957 defendant paid $48,145.25.
The policy provides: 1 ‘ 16. It is understood and agreed that if in case of loss the Insured shall acquire any right of action against any individual, firm or corporation for loss of or damage to the property insured hereunder, the Insured will, if requested by the Company, assign and transfer such claim to the Company or at the Company’s option, execute and deliver to the Company the customary form of loan receipt, upon receiving payment for loss or advancement of funds in respect of the loss; and will subrogate the Company to, or will hold in trust for the Company, all rights and demands of every kind, respecting the same, to the extent of the amount paid or advanced, and will permit suit to be brought in the Insured’s name at the expense of the Company.”
Plaintiff upon receipt of said payment executed on January 3,1957 a loan receipt reading, in part: ‘ ‘ borrowed and received FROM ST. PAUL FIRE & MARINE INSURANCE COMPANY, St. Paul, Minn. the sum of Forty Eight Thousand One Hundred Forty Five and 25/100 Dollars, $48,145.25, as a loan, without interest, repayable out of any net recovery the undersigned may make * * * for loss of or damage to the property described below * # * and as security for such repayment, we hereby pledge to the said Insurance Company all such claims and any recovery thereon * * * we hereby appoint the officers of said Insurance Company and their successors, severally, our agents and attorneys in fact, with irrevocable power to collect any such claim and to begin, prosecute, compromise or withdraw, in our name, but at the expense of the said Insurance Company, any and all legal *169proceeding’s which they may deem necessary to enforce such claim or claims
Defendant prosecuted an action in Texas in plaintiff’s name against the hotel in Dallas, Texas, with which the jewelry had been deposited. In the Texas action plaintiff originally sought its cost of the jewelry, the amount therefor paid by the defendant. The complaint was amended to increase the amount sought to $65,000, representing the wholesale market value of plaintiff’s jewelry. Final judgment was entered in the Texas action in the sum of $87,505.53. It is stipulated the components thereof are $48,145.25, plaintiff’s cost; $16,854.75, plaintiff’s loss of profit; and $22,505.53, interest from the date of loss to the date of judgment.
The parties were unable to agree on the division of the recovery. A partial distribution was made in accordance with a supplemental agreement dated May 22, 1962. It was therein stipulated that the legal fees and disbursements in the sum of $31,370.30 were to be paid; the balance of $56,135.23 being distributed as follows: to defendant, $30,885.42; to plaintiff, $14,556.07; the remaining sum of $10,693.74 to be held in escrow to await the order of a court of competent jurisdiction. Said legal expenses were ratably allocated to the amount of $48,145.25 advanced by defendant to plaintiff, the recovery for plaintiff’s loss of profit, $16,854.75, and the total interest of $22,505.53.
Accordingly, plaintiff, the assured herein, has actually received to date on account of the loss a total of $62,701.32 ($48,145.25 from its insurer plus $14,556.07 out of the recovery) and is now seeking an additional $10,693.74, or a total of $73,395.06, as against a claimed gross loss, including its anticipated profit and interest of $87,505.53. Defendant, on the other hand, has actually received only $30,885.42 as against its actual advance of $48,145.25.
This action was commenced July 18, 1962 on the policy, the loan receipt and the agreement of May 22, 1962.
We are not concerned with the assessment of the legal expenses between the parties. This has been dealt with by the stipulation of May 22, 1962. The payment of $30,885.42 to the defendant was in satisfaction of its advance to the plaintiff of $48,145.25 after deduction of its share of legal expenses. If the defendant is to receive more, it is by force of the loan receipt or the terms of the policy.
The loan receipt limits repayment of the defendant of said sum “ without interest”. Adverting thereto the opposing affidavit of defendant’s claims examiner states:
*170‘ ‘ I believe that I am in a position to state to this Court the intention, not only of the St. Paul Fire and Marine Insurance Company but of the entire insurance industry, in incorporating that phrase in the standard form of loan receipt.
“ Those words are used, purely and simply, to protect the assured itself from having to pay any interest out of pocket. They are intended to make it clear that, regardless of the fact that the payment to the assured is characterized as a loan, the assured will never be called upon to pay any interest on the ‘ loan ’ out of its own funds. The words refer to the assured’s obligation—or, rather, lack of it—in the absence of my net recovery out of which the 1 loan ’ may be repaid.
“ Conversely put, the phrase in question has nothing whatever to do with the potential distribution of a recovery from a third party. If there is such a recovery, the insurer is to be made whole out of the net recovery to the extent of its advance, and the assured will receive only any excess recovery over that amount.
“ The assured’s claim that those words prevent the St. Paul from sharing in the interest recovered from the Hotel is a complete distortion of the language and purpose of the loan receipt, and a denial of common sense as well. Certainly no such meaning was contemplated when the document was executed. It is fair to infer that the assured never conceived such a far-fetched notion until long after the agreement was made — until, in fact, the time for distribution of the proceeds was at hand.”
If the loan receipt had provided for repayment “with interest ” instead of “ without interest” all that defendant contends for might be granted. That repayment is not the personal obligation of the plaintiff and is to be effectuated solely from a recovery on the claim is clear from the terms of the receipt and the explanatory letter of the defendant described in the aforesaid affidavit. There is no ambiguity and we may not under the guise of interpretation recast the obligations expressed. (Raleigh Assoc. v. Henry, 302 N. Y. 467, 472-473.) Moreover, if there be ambiguity, it is to be resolved against defendant insurer. (Greaves v. Public Serv. Mut. Ins. Co., 5 N Y 2d 120, 125.)
Defendant argues the loan receipt simply implements paragraph “16” of the policy. Thereby at defendant’s option plaintiff agrees to assign the claim or execute the customary loan receipt “ upon receiving payment for loss or advancement of funds in respect of the loss”, and subrogate the defendant to the extent of its payment or advance. It was within the competence of the parties to continue title in the plaintiff despite *171the advance made to it by the defendant. We are not concerned with the motives of the parties. Defendant elected to preserve and continue plaintiff’s title and may not at this time assert the contrary. (Sosnow, Kranz & Simcoe v. Storatti Corp., 269 App. Div. 122, affd. 295 N. Y. 675.) The plaintiff at all relevant times was the owner of the claim underlying the Texas litigation. Plainly the interest thereon awarded is an incident of the ownership of the claim.
Defendant’s reliance on its right of subrogation is misplaced. Plaintiff’s claim in the Texas action was a single one for the wholesale market value of the jewelry and interest (see Globe Ind. Co. v. Atlantic Lighterage Corp., 271 N. Y. 234). Defendant ■paid plaintiff its cost, which constituted only a part of the litigated claim. Subrogation did not arise until the plaintiff’s claim was completely satisfied. (McGrath v. Carnegie Trust Co., 221 N. Y. 92, 95; Northwestern Fire & Mar. Ins. Co. v. Ley & Co., 238 App. Div. 255, affd. 264 N. Y. 427; Sun Ins. Office v. Hohenstein, 128 Misc. 870; 31 N. Y. Jur., Insurance, § 1620, p. 512.) Subrogation is not intended to place the insurer upon a footing of equality with the insured prior to full satisfaction of the insured’s claim. (Columbia Finance & Trust Co. v. Kentucky Union Ry. Co., 60 P. 794, 796, cited with approval in McGrath v. Carnegie Trust Co., supra, p. 95.)
Plaintiff’s recovery here, inclusive of the sum advanced to it by defendant, is not in excess of plaintiff’s claim as adjudicated in the Texas action. Hence, defendant has no right of ¡subrogation in respect of the sum here involved.
The order and judgment should be affirmed.
Stevens and Staley, JJ., concur with Breitel, J. P., McNally, J., dissents in opinion, in which Stetjer, J., concurs.
Order and judgment granting plaintiff insured summary judgment reversed, on the law, and summary judgment granted to defendant insurer, without costs.