Sam Wong v. Stuyvesant Insurance

TYLER, P. J.

Action to recover upon an insurance policy, issued by defendant company, for a fire loss. The facts show that one L. Ollason was the owner of the land

[110]

upon which the building destroyed was situated. Some time prior to the year 1908, he had leased the land to a Chinaman, who erected thereon an apple evaporating plant. The lease was subsequently assigned and the business transferred to one Wong Wah, under the trade name of Sang Yuen Company, Wong being the sole owner thereof. The assignment carried the building which had been constructed on the premises. On June 20, 1908, Ollason entered into a written agreement with Wong Wah whereby he leased the premises for a term to expire June 1, 1914, said lease being taken in the name of Sang Yuen Company. The lease provided, among other things, that any improvement erected on the premises by the lessee might be removed at the end of the term, provided that all rent due under the lease was paid in full. The rents were paid and after the expiration of the lease no formal renewal was had, the lessee remaining in possession under the same terms and conditions as provided for under the original lease. Upon acquiring the property Wong Wah had insured the evaporating plant during the period he owned the same. In the year 1918, about five years prior to his death, Wong Wah, being aged, retired and turned his business, including his leasehold interest, over to his son, Sam Wong, plaintiff herein. The son continued in possession of the property and kept the building insured and paid the premiums on the policies. On the second day of October, 1926, plaintiff insured the building with defendant company. No written application for the insurance was ever made by the insured, and the policy was issued by defendant company on application of its agent. While this policy of insurance was in effect, the building was destroyed by fire. Immediately after its destruction, and before any proof of loss or claim could be made upon defendant company, it instructed its agent to return the premium to defendant, as it had elected to refuse to pay the policy on the ground that the building was not owned by the insured and on the further ground that the building was situate on leased property. The policy was in the standard form required by our statute (Stats. 1909, pp. 404, 406), which statutory form contains the following provisions: “Unless otherwise provided by • agreement endorsed hereon or added hereto, this entire policy shall be