Opinion
November Term, 1901.
Martin Paskusz, for the plaintiff.
Michael H. Cardozo, for the defendant.
The underlying question is, what is the whole insurance upon the property destroyed? The plaintiff insists that it is the actual insurance effected by the four policies plus that effected by the defendant's policy; that the actual insurance effected by the four policies, in view of the eighty per cent clause, amounts to $7,952.84 only, and that, therefore, under the defendant's policy, it should pay $38,177.26. The defendant's contention, on the contrary, is that the total insurance is $60,000, and that it is liable only for 42500/60000 of $45,321.18, or $32,102.50, the amount which it paid.
Under the terms of all the policies, the amount of insurance exceeding the amount of loss, the plaintiff is entitled to full indemnity. The defendant's contention proceeds upon the theory that the plaintiff, by taking out the four additional policies, has become a co-insurer with it and must bear a proportionate part of the loss; or, in other words, that under the four policies contributing with the defendant, the plaintiff is a co-insurer for the difference between the amount for which the four companies are liable and the assumed aggregate insurance of $17,500 covered by those policies. Hence it is argued that the amount of insurance and not the amount of the liability controls. But it seems to us that the amount of insurance effected by the four policies is identical with the amount of the loss, and that the extent of that insurance could not be ascertained until after a loss, for the insurance was to an amount not exceeding a stipulated sum and was, therefore, indefinite. It might or might not be the maximum amount named in each of the four policies. How much insurance was effected by each policy depended upon the sound value of the property covered at the time of the loss, diminished by twenty per cent. The plaintiff obtained insurance additional to that granted by the defendant only to the amount for which the four underwriters, other than the defendant, would be liable upon their policies. It is the actual amount of insurance obtained by the plaintiff and in force at the time of the loss from which the contribution is to be made.
Judgment should be directed for the plaintiff for $6,074.76, with interest from November 28, 1900, with costs.
VAN BRUNT, P.J., INGRAHAM, HATCH and LAUGHLIN, JJ., concurred.
Judgment ordered for plaintiff for $6,074.76, with interest from November 28, 1900, with costs.