Opinion
July 5, 1960
In an action in which the amended complaint pleads three causes: (1) to recover as the insured for a fire loss upon a policy issued by the defendant Insurance Company; (2) to recover as the insured's assignee for such fire loss upon said policy; and (3) to recover damages from the Stich defendants, insurance brokers, for their negligence in not effectuating a proper indorsement upon the policy showing a change of ownership, the insurance company appeals from so much of an order of the Supreme Court, Kings County, dated May 4, 1959, as denies its motion to dismiss the second cause of action. The amended complaint alleges that the insurance company had issued to Foster Garden Apartments, Inc., plaintiff's assignor, a standard fire policy insuring certain real property then owned by it; that Foster conveyed the premises to plaintiff, taking back a purchase-money mortgage; and that thereafter, while Foster was still the owner of the mortgage, a fire occurred on the premises as a result of which the insured property was partially destroyed. In the second cause of action, plaintiff sues as assignee of all right, title and interest of Foster in and to any recovery to which it may be entitled by virtue of the fire loss. Order insofar as appealed from affirmed, with $10 costs and disbursements. We are in accord with the views expressed in the opinion at Special Term. ( Ardon Constr. Corp. v. Firemen's Ins. Co. of Newark, N.J., 16 Misc.2d 483.) Nolan, P.J., Beldock, Christ and Brennan, JJ., concur. [ 16 Misc.2d 483.]