Thomas Doran, Respondent, v. The Franklin Fire Insurance Company, Appellant

Thomas Doran, Respondent, v. The Franklin Fire Insurance Company, Appellant. (Argued March 4, 1881; decided October 25, 1881.) This action was upon a policy of fire insurance. The policy contained a condition avoiding it in case “ the assured shall have or shall hereafter make any other insurance on the property * * * without, the consent of the company written hereon.” The policy was issued August 31,1876. On February 5, 1875, a one year’s policy on the property was issued by another company, “ loss, if any, payable to the Savings and Building Fund Association, No. 9, as interest may appear.” The said association held two mortgages' on the property, executed by plaintiff, both containing covenants on the part of plaintiff to keep the property insured, and “in case of any failure in the covenant,” authorizing the association to insure. The prior policy was obtained by the secretary of the association, with the knowledge of the plaintiff, who paid the premium. That policy contained a similar condition as to other insurance, with the exception that it was limited to insurance thereafter obtained. Said policy was renewed by the' association without the assent or knowledge of the plaintiff. The court here held, on authority of Titus v. Glens Falls Insurance Company (81 N. Y. 410), that the act of the mortgagee in procuring the renewal could not be so far regarded as the act of plaintiff as to work a breach of the condition. The policy in suit also contained this condition “in case of any other insurance on the property hereby insured, whether valid or not, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount so insured thereon.” Held that the policy so renewed was other insurance within the meaning of said condition; and that a refusal of the court to rule on the trial that defendant was liable for only a proportionate part of the loss was error. G. A. Clement for appellant. Amasa, J. Parker for respondent. [MAJORITY — Folger, Ch. J.,] Folger, Ch. J., reads for reversal and new trial. All concur, except Earl, J., not voting. Judgment reversed.