Summary
In Brighton Beach Racing Assn. v. Home Ins. Co., 47 Misc Rep. 177, [93 N.Y. Supp. 654], under a similar contract to convey, the court said: "It is plain that there was a change in interest.
Summary of this case from Finkbohner v. Glens Falls Insurance Company of Glens Falls, New YorkOpinion
May, 1905.
C.H. Hyde for plaintiff.
Richards Heald for defendant.
The policy contains a clause that it should be void "if any change other than by the death of the insured take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazzard) whether by legal process or judgment or by voluntary act of the insured or otherwise."
It is plain that there was a change in interest. There was in fact a change of title. The possession given under the contract of sale made the purchaser the equitable owner in fee (Pelton v. Westchester Fire Ins. Co. 77 N.Y. 605; Aetna Fire Ins. Co. v. Tyler, 16 Wend. 385; Hays' Administrator v. Miller, 6 Hun, 320; Wood v. American Fire Ins. Co. 149 N.Y. 382). It would be useless to cite extracts from the insurance text books or from decisions. They may be better read there than here.
The purchaser was given possession of the land during the contract period, with a right to build thereon, and was to pay taxes and assessments, and the interest on the mortgage which he was purchasing subject to, during such period. Although the contract said he was to occupy "as tenant of the party of the first part, without any pay or rent thereof", it is manifest that the contract gave him more than the interest and rights of a tenant. He could not be put out as a tenant regardless of his rights under the contract as purchaser. On the contrary, he had and could enforce the interest and rights of a purchaser in possession, though called a tenant. Names cannot do away with the nature and substance of things.
Judgment for the defendant.