mortgagee clause in New York

1946A. Corporation ( 143 N. Y. 311, 324 , supra) the court said: “ By taking the insurance in the manner the mortgagee herein did, instead of taking out a separate policy, all the provisions in the policy, which from their nature would-properly apply to the case of an insurance of the mortgagee’s interest, would' be regarded as forming part of the contract with him, while those provisions which antagonize or impair the force of the particular and specific provisions contained in- the clause providing for the insurance of the mortgagee, must be regarded as ineffective and inapplicable to the case o

1932In Eddy v. London Assurance Corp. ( 143 N. Y. 311, 322 ), this court said: “ The effect of the mortgagee clause hereinbefore set forth is to make an entirely separate insurance of the mortgagee’s interest, and he takes the same benefit from his insurance as if he had received a separate policy from the company, free from the conditions imposed upon the owners.” Quoting from Hastings v. Westchester Fire Ins.

1943Co., 73 N. Y. 141, 154 .) The provision for subrogation, found as a part of such a mortgagee clause, is a benefit from mortgagee to insurer, in consideration of the added protection afforded to the former by the clause (Hastings case, same page).

1931Co. ( 73 N. Y. 141 ) in which the court said: “ It [the mortgagee clause] was an independent agreement partaking in no sense of the character of an assignment of a policy of insurance, but one in which the mortgagees were recognized as a separate party, having distinct rights, and entitled to receive the full amount of insurance money, without any regard whatever to the owner of the property” (p. 148).

1991Co., 140 App Div 557, 559 [1st Dept 1910], affd 202 NY 610 [1911].) Generally, the standard mortgagee clause obtained by the mortgagor is a separate contract between the insurer and mortgagee so that if the mortgagor has not breached any conditions that would lead to subrogation rights, payment by the insurer to the mortgagee is a pro tonto reduction of the mortgage debt.

1933Co., 150 id. 728; Heilbrunn v. German Alliance Insurance Co., 140 id. 557; affd., 202 N. Y. 610 ; Eddy v. London Assurance Corp., 143 id. 311), and unless the change in verbiage has been such as to provide for the limiting of the mortgagee clause by the short statute, the law must be still regarded as set forth in the cases above cited.

1988Co., 78 AD2d 377, 381 ).

1988Co., 78 AD2d 377, 381 ).

1973Co., 260 NY 45 .) The defendant carriers contend, however, that since this mortgagee clause applies by its terms to "buildings only”, it affords no protection to ITM as a party having a secured interest in chattels.

1950Co., 260 N. Y. 45 ; Goldstein v. National Liberty Ins.

1966Co., 222 App. Div. 219, 223 , affd. 250 N. Y. 116 .) A standard policy of fire insurance may be void as to the owner because of his breach, yet, under the standard mortgagee clause be valid as to the mortgagee.

1933Though we affirmed the decision of the Appellate Division ( 250 N. Y. 116 ), the affirmance by this court was on other grounds, and that question was not decided.

1966Co., 222 App. Div. 219, 223 , affd. 250 N. Y. 116 .) A standard policy of fire insurance may be void as to the owner because of his breach, yet, under the standard mortgagee clause be valid as to the mortgagee.

1933Co. ( 222 App. Div. 219 ) the Appellate Division of the first department reached the conclusion that where loss under a policy is payable to a mortgagee the standard mortgagee clause must be read into the policy though not attached thereto.

1936Without authority of the statute, a mortgagee has no claim thereon. (103 Park Avenue Co. v. Exchange Buffet Corp., 200 App. Div. 111 .) The Greater New York Charter does not authorize any interest in a mortgagee in such an award.” That case arose under a charter provision for an award of damages to the “ owner ” of property damaged by a change of grade.

1931Without authority of the statute, a mortgagee has no claim thereon. (103 Park Avenue Co. v. Exchange Buffet Corp., 200 App. Div. 111 .) The Greater New York Charter does not authorize any interest in a mortgagee in such an award.

1931Co. ( 87 N. Y. 69 ) the mortgagee clause read as follows: “It is hereby agreed, that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy.” The owner of the insured premises was an infant three years of age.

1910Co., 87 N. Y. 69 .) How if I have succeeded in demonstrating that the provisions of- the policy preceding line 59 which are neither expressly modified nor continued in force by the mortgagee clause constitute, so far as applicable, part of the contract of insurance with the mortgagee, then it follows logically, I think, that the provisions with respect to notice of the fire, proof of loss and arbitration likewise become part of that contract, for although the specific requirement with respect to these things is contained in lines succeeding line 59, yet there are, as has been seen, in the firs

1873Co . ( 16 Peters, 495 -501), per STORY, J.: It is not in either of these cases declared that the mortgagee can claim no more of the insurer than what the security for his debt fails to yield.

1873Co. ( 16 Peters, 495 -501), per Stort, J.: It is not in either of these cases declared that the mortgagee can claim no more of the insurer than what the security for his debt fails to yield.

2005In light of our determination of a related appeal (see 730 J & J, LLC v Fillmore Agency, Inc., 22 AD3d 741 [2005] [decided herewith]), the instant appeal has been rendered academic, because even if the insurance policy was reformed so as to include a standard mortgagee clause, this would not directly affect the parties’ rights (see Matter of Henry v Noto, 50 NY2d 816 [1980]; Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]).

2005In light of our determination of a related appeal (see 730 J & J, LLC v Fillmore Agency, Inc., 22 AD3d 741 [2005] [decided herewith]), the instant appeal has been rendered academic, because even if the insurance policy was reformed so as to include a standard mortgagee clause, this would not directly affect the parties’ rights (see Matter of Henry v Noto, 50 NY2d 816 [1980]; Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]).

2005In light of our determination of a related appeal (see 730 J & J, LLC v Fillmore Agency, Inc., 22 AD3d 741 [2005] [decided herewith]), the instant appeal has been rendered academic, because even if the insurance policy was reformed so as to include a standard mortgagee clause, this would not directly affect the parties’ rights (see Matter of Henry v Noto, 50 NY2d 816 [1980]; Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]).

1991The court there noted ( 69 AD2d, at 675 ): "A standard mortgagee clause in a contract of fire insurance contemplates the possibility of foreclosure of the mortgage”.

1988Co., 159 App Div 313 , affd 216 NY 692 ).

1988Co., 159 App Div 313 , affd 216 NY 692 ).

1986Assoc. v Printsiples Fabric Corp., 61 NY2d 732, 734 ; see generally, 22 NY Jur 2d, Contracts, General Rules of Construction, §§ 187-199).

1985Co., 96 AD2d 99 ).

1985Notwithstanding the provisions of Real Property Law § 254 (4) (a), as related to mortgages, or the holding in Raplee v Piper ( 2 AD2d 732 , affd 3 NY2d 179 ), as related to land contracts, the insurance moneys will not be applied to reduction or satisfaction of Ielati’s indebtedness if defendant succeeds in establishing the validity of its defenses to Ielati’s claim other than, of course, those predicated on the issues determined against defendant herein (Savarese v Ohio Farmers Ins.

1985Notwithstanding the provisions of Real Property Law § 254 (4) (a), as related to mortgages, or the holding in Raplee v Piper ( 2 AD2d 732 , affd 3 NY2d 179 ), as related to land contracts, the insurance moneys will not be applied to reduction or satisfaction of Ielati’s indebtedness if defendant succeeds in establishing the validity of its defenses to Ielati’s claim other than, of course, those predicated on the issues determined against defendant herein (Savarese v Ohio Farmers Ins.

1983Co., 28 NY2d, at p 335 .) But to the extent that a deficiency exists after foreclosure and sale, the debt remains, and an insurable interest in the mortgagee as loss payee of the mortgagee clause of the fire policy survives.

1979The rule in New York is that as between the parties to the mortgage and their assigns, a judgment of foreclosure is conclusive as to the amount of the mortgagee’s lien on the premises (Clark v Levy, 130 App Div 389, 392 , supra; see, also, Dewey v Brownell, 54 Vt 441; Burlington Bldg. & Loan Assn. v Cummings, 112 Vt 122, 125) but it is not conclusive as to persons who are not parties to the proceedings (Smith v Pacific Improvement Co., 104 Misc 481 ; Wacht v Erskine, 61 Misc 96 ).

1979The rule in New York is that as between the parties to the mortgage and their assigns, a judgment of foreclosure is conclusive as to the amount of the mortgagee’s lien on the premises (Clark v Levy, 130 App Div 389, 392 , supra; see, also, Dewey v Brownell, 54 Vt 441; Burlington Bldg. & Loan Assn. v Cummings, 112 Vt 122, 125) but it is not conclusive as to persons who are not parties to the proceedings (Smith v Pacific Improvement Co., 104 Misc 481 ; Wacht v Erskine, 61 Misc 96 ).

1979Two New York cases bear upon the issue at bar and do not support the conclusion reached by. the Massachusetts courts in Ben-Morris (supra).

1979The rule in New York is that as between the parties to the mortgage and their assigns, a judgment of foreclosure is conclusive as to the amount of the mortgagee’s lien on the premises (Clark v Levy, 130 App Div 389, 392 , supra; see, also, Dewey v Brownell, 54 Vt 441; Burlington Bldg. & Loan Assn. v Cummings, 112 Vt 122, 125) but it is not conclusive as to persons who are not parties to the proceedings (Smith v Pacific Improvement Co., 104 Misc 481 ; Wacht v Erskine, 61 Misc 96 ).

1971Co., 177 App. Div. 351 .) The mortgagee clause in the insurance policy issued by Public provides, in part: 11 If this company shall claim that no liability existed as to the mortgagor or owner, it shall to the extent of payment of loss to the mortgagee, be subrogated to all of the mortgagee’s rights of recovery, but without impairing mortgagee’s right to sue; or it may pay off the mortgage debt and require an assignment thereof and of the mortgage. ’ ’ June 23, 1971, by stipulation of counsel in open court, all affirmative defenses in Public’s answers were withdrawn as to Benderson.