Opinion
March 6, 1918.
William Rooney, for the appellant.
N.A. Calkins, for the respondent.
This action is brought to recover upon a fire insurance policy for the loss of a dwelling house and contents. When the policy was issued there was already outstanding upon the same property a policy issued to the husband of the plaintiff by the Fidelity-Phœnix Insurance Company. Subsequently the policy of the husband was transferred to the plaintiff, together with all his interest in the property insured. Thereupon the policies expanded to cover the merged interests and the property became doubly insured. ( Hooper v. Hudson River Fire Ins. Co., 17 N.Y. 424.)
The policy in suit made provision for forfeiture thereof as follows: "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not, on property covered in whole or in part by this policy." This insured never made any other contract of insurance than the policy in suit. She never contracted with the Phœnix Company. She paid it no premium, and she made it no promise. Neither did she procure from it a contract of insurance. That contract was procured by her husband for himself, and was in existence long before she had any title thereto. It became hers by an act of transfer from her husband, and there is no evidence that even that transfer was procured by her.
Conditions of forfeiture contained in fire insurance policies must be strictly construed. ( Darrow v. Family Fund Society, 116 N.Y. 537.) "That construction should be adopted which is most beneficial to the promisee." ( Hoffman v. Ætna Fire Ins. Co., 32 N.Y. 405.) The case of Vose v. Hamilton Mutual Ins. Co. (39 Barb. 302) is very much in point. There the insured owned a stock of goods in each of two stores which were separately insured. With the consent of the insurer the separate stocks were placed in the same store, whereupon the policies expanded to cover both stocks, and they became doubly insured. Forfeiture was provided for in the policy sued upon only in case another policy covering the same goods "has been or shall be issued." As no policy was ever "issued" which at the time of "issue" covered both stocks, and double insurance occurred only through automatic expansion of policies when the goods were mixed, it was held that no forfeiture was worked. That case is sufficient warrant for holding that when a part owner of property having insurance thereon accepts a transfer of the interest of another owner together with his insurance, she does not "make or procure any other contract of insurance" within the meaning of the condition of forfeiture.
The judgment should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.