(78 Hun, 109.)

#### WOOD v. AMERICAN FIRE INS. CO. OF PHILADELPHIA.

(Supreme Court, General Term, Third Department.

May 26, 1894.)

1. Insurance—Title to Insured Property—Evidence.

Evidence.that insured property was in the possession of the assured, and that the insurance company, in issuing its policy, treated it as the property of the assured, is sufficient, in the absence of evidence to the contrary, to prove title in the assured.

2. Same—Assignment op Interest in Firm.

A policy issued in the name of a firm after an assignment by one of the partners of his interest in the firm to his copartner does not misstate! the interest of the assured in the property, as a mere assignment by a partner to his copartner does not divest the title of the firm.

3. Same—Waiver op Conditions.

Though a waiver of conditions after a policy is issued must be in accordance with its terms, if the agent, when the insurance was negotiated, knew the facts claimed to be a breach of condition, a waiver will be presumed.

4. Same—Change op Interest—Sale under Execution.

A sale of insured property under execution is not, during the redemption period, a change of title and interest, within a clause of the policy that such a change shall avoid the policy.

Appeal from special term, Clinton county.

Action by Jennie M. Wood against the American Fire Insurance Company of Philadelphia on a policy of fire insurance. There was a judgment in favor of plaintiff, and defendant appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Shedden & Booth (L. L. Shedden, of counsel), for appellant.

Weeds, Smith & Conway (T. F. Conway, of counsel), for respondent.

MAYHAM, P. J.

The action in this case was prosecuted by the assignee of an insurance policy issued by the defendant to a firm known and designated as Wood Bros. The defendant, by its answer, and on the trial, relied upon various grounds of defense, and urges the same on this appeal as grounds for a reversal of this judgment.

The first is that the assignment of the cause of action to the plaintiff is insufficient. We see no valid objection to the validity of this assignment. It was in writing, contained a sufficient description of the matter assigned, was made after the loss, stated a valuable consideration, and was executed by all of the survivors of the firm.

The second objection—that the insured had no title to the insured property—seems equally untenable. The insured property which was destroyed by the fire, and was covered by the policy, was in possession of the firm, and appears to have belonged to it; and no question upon the proof was made as to the validity of the title of the insured, and the defendant, in issuing its policy, treated it as the property of the Wood Bros. In the absence of proof, this court, on appeal, cannot assume want of ownership in the *251.assured for the purpose of avoiding the policy. In McMaster v. Insurance Co., 55 N. Y. 232, Folger, J., says:

> ‘•The currents of decisions run to this: that the courts will not be astute to find ways to work the forfeiture of a contract of insurance.”

Applying this rule of construction, we cannot hold that the Wood Bros, had not, at the time of this insurance, the title to the property insured. The assured is not bound, in the first instance, before a recovery can be had for a loss, to prove title as he would be required to do in an action of ejectment. Possession of the property at the time of taking the policy is enough, in the absence of an affirmative defense of want of title, and proof sustaining such defense. It was alleged in the answer, and proved on the trial, that one of the copartners, at the time of the issuance of the policy, had made a general assignment of all of his property for the benefit of creditors, and that the assignee had sold his interest at public auction; but it also appeared affirmatively that no actual dissolution of the co-partnership had been effected, and that the firm continued to transact its copartnership business down to the time of the fire which destroyed the insured property.

It is insisted by the defendant that, the interest of one member of the firm having passed to his assignee, the interest of the Wood Bros, is not truly stated in the policy, and that such misstatement annuls it. If this were an individual policy, taken in the name of the assignor after such assignment, such misstatement would doubtless avoid the policy. But the insolvency of a member of a firm, or his assignment, does not, we think, per se dissolve the firm, except as to future events; and, as between the copartners, as to third parties the partnership is not by such transfer or insolvency ipso facto dissolved, where the partnership still continues to transact business. Taft v. Buffum, 14 Pick. 322; Sistare v. Cushing, 4 Hun, 506. It remains the property of the firm until a dissolution in fact occurs, and accounting isl had, and the firm obligations are paid, when the assignee of the individual member of the firm would be entitled only to the assignor’s share of the surplus. In Menagh v. Whitwell, 52 H. Y. 158, Sapallo, J., says:

> ‘‘The corpus of the effects is joint property, and neither partner separately has anything in that corpus; but the interest of each is only his share of what remains after the partnership debts are paid, and accounts are taken.”

Within this principle it is doubtful whether the fee of the firm’s ■real property did not remain in the firm after the assignment of the individual partner for the purposes of the partnership. If the title remained in the firm after this individual assignment, it cannot be claimed that the existence of that assignment was a breach of warranty of title of the premises in Wood Bros. The same may be said, we think, as to the other assignment by individual partners, and the appointment of a receiver as to one not set up in the answer, but proved upon the trial. They did not divest the firm •of title, and the defendant issued its policy to the firm, and not to the individual members thereof. The provisions of the policy *252as to the title referred to its quality, and the title, being in the-firm, was not in any way affected by the assignment of individual, members. American Artistic Gold Stamping Co. v. Glens Falls. Ins. Co. (Com. Pl. N. Y.) 20 N. Y. Supp. 646. But if it can be held; that the assignment or transfer by individual members of a firm of.' their individual interests affects the title of the firm, so that it cannot be said to be owner in fee, still, as the real condition of the-member of this firm who had assigned was known to the agent, of the defendant who took this application and issued this policy*. it cannot be claimed that such transfer constituted a breach of warranty of title as to his company. The knowledge on the part of the agent who transacted the business was the knowledge of the company, and was a waiver of the warranty claimed to be broken... Berry v. Insurance Co. (Sup.) 8 N. Y. Supp. 762. See, also, Broadhead v. Insurance Co., 14 Hun, 452, 23 Hun, 397. A waiver, after-the issuing of the policy, must be in accordance with its terms, but. at or before its inception will be presumed, if the agent had knowledge at that time of the facts claimed to be a defense. If a company issues a policy and accepts a premium with knowledge of the-facts on the part of the agent, it will not be permitted to set up suck-facts to avoid the policy in case of loss. To permit the defendant' to attack the validity of the. policy on account of those facts would, be to impute to it a fraud in receiving the premium and issuing?? a policy in the first instance, which it knew to be void. Haight v. Insurance Co., 92 N. Y. 51, 55; Van Schoick v. Insurance Co., 68 N. Y. 434-441; Woodruff v. Insurance Co., 83 N. Y. 133-141; Richmond v. Insurance Co., 79 N. Y. 230; Whited v. Insurance Co., 76 N. Y. 415.

The evidence does not disclose any affirmative assertion of title,, or any concealment of any fact from the company at the time of' effecting the insurance, or that the insured was asked by the company to malte any statement in reference to its title. In Cross v. Insurance Co., 132 N. Y. 136, 30 N. E. 390, the court say:

> “The party applying for insurance is not bound to disclose the nature or-extent of his interest to the insurer unless requested.”

The Wood Bros., at the time the insurance was effected, hacB an insurable interest in this property. That interest they sought to protect by this policy. There is no claim that this policy was-procured by fraud, and the loss far exceeds the amount of insurance*., and the happening of the event insured against would result in pecuniary loss to the assured. Cone v. Insurance Co., 60 N. Y. 619 p Herkimer v. Rice, 27 N. Y. 163. Under such circumstances, while-the court should not overlook any clear violation of the contract, it should not seize upon imaginary or doubtful pretexts for the purpose • of forfeiting the policy. After the making of this policy a judgment was recovered against the Wood Bros., to whom it was issued,, on which an execution was issued, and the premises on which the-building covered by this policy stood were sold, and a sheriff’s certificate of sale executed to the purchaser; but before the time of " redemption under such sale had expired the insured building was,. *253trained. The defendant now insists that by the terms of the ■ policy this judgment, execution, sale, and sheriff’s certificate rendered the policy void. The exact provision of this policy upon that point is not contained in the case, but is partially stated in both the brief of the plaintiff and that of the defendant, from which it •appears that to invalidate the insurance by judgment the interest, title, or possession of the subject of the insurance must be changed.

' ‘This was not effected by the judgment or proceedings under it. The , judgment debtor was still entitled to the possession of the insured property. Section 1440 of the Code of Civil Procedure provides as follows:

> “The right and title of a judgment debtor * * * is not divested by the sale until the expiration of the period within which it can be redeemed.”

We must, I think, therefore treat this judgment and sale under it, so long as the right to redeem exists, as inoperative as against the terms of the policy, and the right of the insured or their assignee as unaffected by the same. The right and title of the assured under that section were changed at the time that the liability for this loss attached. In Cone v. Insurance Co., 60 N. Y. 619, the policy contained this provision:

> “Any interest in the property insured, not absolute, or that is less than a perfect title, or if a building is insured that is on leased ground, the same must be specifically represented to the company, and expressed in this policy in writing; otherwise this policy shall be void.”

In discussing the effect of a sale under execution of the property "Insured under this policy the court uses this language:

> “Palmer [the owner] has this interest certainly until the last day of the fifteen months for judgment creditors to redeem. * * * It is apparent that Palmer retained the legal title to the premises until the expiration of the fifteen months; as this did not expire until after the fire his title continued smtil after the fire; and he, till after that event, had a pecuniary interest in the premises, which was affected by their destruction by fire within the andemnity of insurance.”

This and kindred cases seem to settle the doctrine that the right • of the insured is not affected by a judgment and sale until after the -expiration of the 15 months allowed for redemption. Baley v. Insurance Co., 80 N. Y. 21; Green v. Insurance Co., 82 N. Y. 517; Colt v. Insurance Co., 54 N. Y. 595. Walradt v. Insurance Co., 136 N. Y. 375, 32 N. E. 1063.

We have carefully examined the numerous exceptions taken by the learned counsel of the defendant to the findings and refusals • of the learned judge to find, and see no error for which this judgment . should be reversed. Judgment affirmed, with costs.

PUTNAM, J., concurs. HERRICK, J., concurs in result.