Opinion
Argued April 19, 1944
Decided June 8, 1944
Appeal from the Supreme Court, Appellate Division, First Department, WASSERVOGEL, J.
Benj. Shiverts, Thomas R. Purcell and Frank A. Rossini for appellant.
David A. Ticktin for respondent.
This action was brought upon a policy of fire insurance. The policy made provision for appraisment of any loss as to which the parties should disagree. After the insured property had been totally destroyed by fire, the parties entered into a written agreement for the appointment of appraisers to ascertain the amount of the loss.
A rider upon the policy reads as follows: " Loss Adjustment Clause — It is understood and agreed that the basis of settlement on stock sold but not delivered shall be the assured's selling price." Claiming that property covered by the policy had been sold but not delivered by the insured and that the selling price thereof was greater than the coverage, an assignee of the insured brought this action to recover the face amount of the policy. The case is now here on an appeal by the plaintiff from an affirmance by the Appellate Division of a dismissal of the complaint.
On this record, the plaintiff seems to be right in his contention that the appraisal agreement did not displace the provision we have quoted from the rider. But it did not follow that the loss was to be paid without performance by the insured of the appraisal agreement. There was a dispute as to whether the property had been sold by the insured. Consequently the defendant insurer was justified in insisting that the value of the property be fixed by the appraisers prior to litigation of the issues, including the dispute as to whether there had been a sale.
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur; RIPPEY, J., taking no part.
Judgment affirmed.