Seccombe v. Glens Falls Insurance

SHAW, J.

Upon the ground that the complaint did not state facts sufficient to constitute a cause of action, the court sustained an objection to the introduction of any evidence thereunder and gave judgment for defendant, from which plaintiff appeals.

The action is based upon a policy of fire insurance issued to May Prutsman upon property of which she was the owner and upon which she had executed a deed of trust in favor of plaintiff to secure a promissory note executed by her to him, which policy contained a provision for his benefit as mortgagee. The policy, clause A, contains a statement that,

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“subject to all the conditions of this policy, loss, if any, on building, payable to' A. H. Seccombe (who holds trust dee*d). Mortgage clause attached.” The mortgage clause so referred to reads as follows: “Union Mortgage Clause. New York, New Jersey, Connecticut and Rhode Island standard mortgage clause with full contribution. Loss or damage, if any, under this policy on building only, shall be payable to A. H. Seccombe (who holds trust deed) . . . as first mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the ■ mortgagee (or trustee), only, therein, shall not he invalidated by any act or neglect of the mortgagor or owner of the within described property.” Clause C provides: “This policy is made and accepted subject to the foregoing stipulations and conditions and those hereinafter stated, which are hereby specially referred to and made a part of this policy. . . . ” Clause D, headed “Duty of insured in case of loss,” provides that “when a loss occurs the insured must give to this company written notice thereof without unnecessary delay, . . .” and “within sixty days after the commencement of the fire the insured shall render to the company . . . preliminary proof of loss, consisting of a written statement signed and sworn to by him, setting forth” certain matters unnecessary to here specify. Clause E provides that “no suit or action on this policy for the recovery of any claim shall be sustained, until after full compliance by the insured with all the foregoing requirements.”

It appears from the complaint that the dwelling-house covered by the policy was destroyed by fire on November 26, 1915, and that neither May Prutsman as owner nor plaintiff as mortgagee, within sixty days after the commencement of the fire, as provided in clause D, rendered to defendant preliminary proof of" the loss.