Opinion
November 11, 1942.
Appeal by the Western Millers Mutual Fire Insurance Company from orders granting the motion of both Fields and Lake dismissing the counterclaim of the Western Millers Mutual Fire Insurance Company. The property, not the debt owing the vendor, was the subject of the insurance and protected by the provisions of the policies. Loss was payable to the vendor as its interest appeared. When loss occurred the damage to the vendor was satisfied by payment. The debts and rights thereunder were thereby extinguished. The vendor did not possess any right or claim it could validly transfer by assignment to the insurer. Orders appealed from affirmed with costs and disbursements. Crapser, Bliss, Heffernan and Schenck, JJ., concur; Hill, P.J., dissents in a memorandum.
The policy had been cancelled as to vendees but not as to the vendors. The determining factor is who paid for the policy. If the vendor paid an assignment may be taken. ( Foster v. Van Reed, 70 N.Y. 19.) If the policy was obtained and paid for by the vendees the debt was extinguished. ( Barile v. Wright, 256 N.Y. 1.) The complaint alleges that the vendee paid the premium. This is denied in the answer. The order should be reversed and the issues determined at a trial.