Opinion
November 15, 1948.
Order denying plaintiff's motion to strike out as insufficient and as sham the affirmative defense contained in defendant's answer, reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. Plaintiff seeks to recover for damages to his real property, allegedly caused by defendant's negligence. In addition to a general denial, defendant alleges as an affirmative defense that, prior to the commencement of this action, plaintiff received from his insurance company payment of the loss and, by virtue of such payment, the insurer was subrogated in whole or in part to plaintiff's right, title and interest in the cause of action alleged in the complaint. On this motion to strike out the defense as insufficient in law and as sham, it appears that the transaction between the insurance company and plaintiff was in the form of a loan of $3,340, pursuant to a loan receipt, although the damages claimed were $4,343.55. Even if the insurance policy contained only a provision for payment of the loss and subrogation and assignment, the nature of the transaction is dependent solely on the terms and provisions of the loan receipt which evidenced the agreement between the parties. Under that agreement there was merely a loan and not a payment, with the result that there was no subrogation or assignment. ( Balish v. Advance Fuel Oil Corp., 266 App. Div. 683. ) Neither Cocoa Trading Corp. v. Bayway Terminal Corp. ( 290 N.Y. 697, opinion denying motion for reargument 290 N.Y. 865), nor Sosnow, Kranz Simcoe, Inc., v. Storatti Corp. ( 269 App. Div. 122, affd. 295 N.Y. 675), requires a different determination. In the former case, by reason of the express allegations of the affirmative defense and defendant's affidavits, it did not conclusively appear that plaintiff's cause of action had not been assigned to the insurer in addition to, and without relation to, the loan receipt. In the case at bar defendant does not plead assignment in addition to the loan receipt. In the latter case the insurance policy gave the insurer an option either to pay the loss or make a loan in that amount. The evidence conclusively showed that there was merely a loan and not a payment. Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.