Morris Rose, Plaintiff, v. Solomon Schinasi, Defendant

Morris Rose, Plaintiff, v. Solomon Schinasi, Defendant. First Department, June 4, 1915. Principal and agent —lien of agent on insurance policy for moneys advanced for principal — effect of delivery of policies to mortgagee — redelivery of policies to agent for collection. Where an insurance agent, having procured fire insurance policies on real property at the instance of the owner, delivered the same to a mortgagee to whom the loss, if any, was payable, any lien on the policies which the agent may have had against the owner for premium moneys advanced by him was extinguished. Hence, where after a loss by fire, the mortgagee redelivered the policies to the agent for the purpose of adjusting the loss with the insurer, the agent cannot, as against the mortgagee, retain moneys paid to him by the insurance company to liquidate his claim against the owner. The mortgagee’s insurable interest in the premises was wholly distinct from that of the mortgagor, who alone was the principal of the agent, and the policies were redelivered to the latter by the mortgagee for the sole and specific purpose of collecting the loss, and this did not revive the original lien. Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Alexander Rosenthal, for the plaintiff. Frederick L. Guggenheimer, for the defendant. [MAJORITY — Hotchkiss, J. :] Hotchkiss, J. : Plaintiff was an insurance broker and at the request of one Sullivan procured fifteen policies of fire insurance on premises owned by Sullivan, loss, if any, payable to this defendant, who held a mortgage on the premises for $200,000. Plaintiff delivered the original policies to the defendant and the duplicates to Sullivan or his agents. Of the total premiums paid for the policies plaintiff himself paid $981.57. On May 20, 1914, the insured premises were injured by fire, and at plaintiff’s request defendant delivered the policies to plaintiff “for the purpose of having the said fire loss * * * adjusted by the plaintiff, in accordance with his duties as such broker.” Plaintiff collected $70 in settlement of the loss, which sum he still retains. Thereafter defendant requested a return of the policies to him, which request plaintiff refused, claiming a lien thereon, and also on the said $70 in consequence of the moneys he had advanced for premiums, and also claiming that he has the right to surrender the policies to the insurers and to collect and retain the unearned premiums on account of his lien. The question submitted is whether plaintiff has any such right or whether defendant is entitled to a return of the policies. Whatever lien plaintiff may have originally had was lost when he delivered the policies to the defendant. Defendant’s insurable interest in the mortgaged premises gave him an interest in the policies wholly distinct from that of Sullivan, plaintiff’s employer, and when plaintiff became repossessed of the policies, such possession not only came to him from defendant, who stood in the light of a stranger to Sullivan, but as well came for a single and specific purpose, namely, to collect the loss. Under these circumstances, any lien plaintiff may originally have had was not revived. (Sharp v. Whipple, 1 Bosw. 557. See, also, Tolhurst v. Powers, 133 N. Y. 460; Spring v. South Carolina Ins. Co., 8 Wheat. 268.) There should be judgment for the defendant, but, as provided by the submission, without costs. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Judgment ordered for defendant, without costs. Order to be settled on notice.