#### William E. Burke, Appellant, *v.*The Continental Insurance Company of the City of New York, Respondent.

Fourth Department,

November 11, 1908.

Insurance — sale — agreement that seller shall be liable for goods destroyed before delivery — liability of, insurer.

Although it was originally agreed between buyer and seller that the latter should be responsible for the loss of goods until shipped, “except loss by fire,” and that the buyer should insure thé property, but the seller pay the premium, yet where the parties subsequently agreed that the seller should be liable for loss by fire, an insurer having received premiums on a policy issued to the seller prior to said agreement is liable to the seller or its assignee for goods destroyed before delivery.'

McLennan, P. J., and Robson, J"., dissented.

Appeal by the plaintiff, William E. Burke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 7th day of December, 1907, upon the decision of the court, rendered after a trial at the Erie Trial Term before the court without a jury, dismissing the complaint upon the merits.

*Moses Shire*and *Vernon Cole,*for the appellant.

*J. H. Metcalf, C. M. Bushnell*and *Ralph S.*Kent, for the respondent.

Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

The'action was brought to recover upon a policy of fire insurance. There have been two trials, of the case. Upon the first trial judgment was ordered for plaintiff. There was an affirmance in the Appellate division but a reversal in the Court of Appeals. (100 App. Div. 108; revd., 184 N. Y. 77.) The judgment from which this appeal was taken was ordered for defendant on the second trial.

The controversy has arisen over the question as to whether the *392plaintiff’s assignor, the Cunningham Company, had an insurable interest in the property destroyed' at the time of the fire so as to give plaintiff a right of action to recover damages for the loss thereof. The property was the subject, of an agreement between the Cunningham Company and the Independent Company, both foreign corporations, The former was a manufacturer of glass and the latter a dealer' in glass.

' By the agreement the Cunningham Company sold to the Independent Company all the window glass it had on hand and such as it should manufacture some time in the future.' There were provisions in the agreement as to when title to the glass should pass to the purchaser and as to the delivery thereof, and the custody of the same until delivered. It was agreed, among other things, that the seller, until the glass was shipped, should be responsible and liable for and charged with the custody and safety of the glass stored, and with any and all loss thereof or damage thereto, *except loss by fire.*It was further agreed that the purchaser should insure the property but the sellers should pay the premium.

This agreement ivas made December 19, 1900. The policy had been taken out the 4th day of May, 1900, and was in force when this agreement was made. It provided for insurance of property owned or held in trust by the Cunningham Company or sold but not delivered, *for which it might be held liable.*When the agreement . came to be made providing the Cunningham Company should *not*be liable for loss by fire, it was evident the policy would no longer cover the property. In February, 1901, a short time before the fire (which occurred April 3, 1901), the officers of the two companies had an interview on this subject, appreciated the condition of things, and *agreed*that the clause in the agreement should be changed, and that the Cunningham Company *should*be liable for the loss by fire. This was done so as to render a change of the policy unnecessary. '

The court upon the first trial found as matter of fact that this change in the agreement *was*made, and held the defendant liable for the loss. The Court of Appeals, in its opinion for a reversal, made no reference to this change, but treated the written agreement as in full force when the fire occurred. A motion for reargument on this ground was made, the decision of the trial court and the *393Appellate Division having been based upon this *change*of the agreement.

The Court of Appeals then, in a brief memorandum, stated that finding of a change of the agreement was without evidence to support it. (184 N. Y. 570.)

The evidence on this subject was meager, but was supposed to be sufficient to base the finding of a *change*upon.

On the last trial the evidence was given in detail, was • entirely uncontradicted, and was not only sufficient to support such a finding, but practically precluded any other finding. The court nevertheless held and found as a fact that no *change*was made.

This finding if upheld absolutely prevents a recovery by the plaintiff because *the facts*will not be examined by the Court of Appeals. The finding is contrary to the evidence, against the weight of the evidence, and should not be permitted to stand. The defense.is merely technical, has no real merit in it. The defendant received its premiums. Its agent Brown knew of the condition of things and advised the parties that the policy covered the property under the agreement and need not be changed.

This one clause that interfered with the risk was *changed*and then the Cunningham Company clearly -had an insurable interest in the property.

It would be a miscarriage of justice to enable the defendant to escape liability for a loss it was fully paid for carrying.

There should be a reversal and a new trial.

All concurred, except McLennan, P. J., and Robson, J., who dissented.

Judgment reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact.