Greenberg v. 1625 Putnam Avenue Corp. , 241 A.D. 623 ( 1934 )

Order reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to answer within ten days from the entry of the order herein. We are of the opinion that the complaint contains facts sufficient to state a cause of action. Plaintiff was the owner of a second mortgage upon premises 1615 Putnam avenue, Brooklyn. Defendant Title Guarantee and Trust Company owned a first mortgage upon the same premises. Defendant Putnam Avenue Corporation was the owner of the fee. The owner, in the plaintiff’s mortgage, covenanted that it would insure the property against loss by fire for the benefit of the plaintiff. That covenant was breached. Defendant owner, however, insured in favor of itself and the first mortgagee. A small loss resulted, and the first mortgagee waived its rights to the insurance moneys. The facts alleged bring this ease within the rule that “ where the assured has agreed to insure for the protection and indemnity of another person having an interest in the subject of the insurance, then such third person has an equitable lien, in case of loss, upon the money due upon the policy to the extent of such interest.” (Cromwell v. Brooklyn Fire Ins. Co., 44 N. Y. 42; Dunlop v. Avery, 89 id. 592.) Lazansky, P. J., Hagarty, Carswell, Scudder and Tompkins, JJ., concur.