708   INSURABLE INTEREST

Section 4.-Creditor in Debtor's Property.

(a) AN UNSECURED CREDITOR. MILLER v. STUYVESANT INS. CO.

Supreme Court, Appellate Division, First Department, 1928.
223 App. Div. 6, 227 N. Y. S. 326.

Action by Nathan J. Miller and others against the Stuyvesant Insurance Company. From a judgment on a directed verdict for plaintiff after a trial without a jury, the jury having been waived by stipulation of the parties, defendant appeals. Reversed, and judgment directed for defendant, dismissing the complaint.

McAvoy, J. Judgment was rendered in favor of the plaintiffs in this action on a fire insurance policy. The policy was the New York-New Jersey standard form, which was then in use. The assured is the Nitro Powder Corporation of New Jersey. It is not a party to the action, because the suit was brought by a concern known as Miller & Co., who were appointees under a loss payable clause which reads:

"Loss, if any, payable to Miller & Co., as interest may appear."

The two questions which are litigated are : A question of law as to whether or not the limitation of time for suit contained in the policy is one that applied as against an appointee; and, if such limitation did not apply against an appointee or mortgagee, whether or not the appointee had an insurable interest in the property destroyed or damaged by the fire.

The plaintiffs pleaded that they had, down to and including the date of the fire, advanced over 810,000 upon the property referred to in the policy, and had an insurable interest therein to the full extent of the value of the property destroyed. There is no question of fact raised by the pleadings on the defense of the one-year limitation prescribed by the standard policy; it being alleged in

other case, supposing the property was fully insured by the corporation, and the loss was paid to the corporation, it might be that lie would have no separate interest as a stockholder protected by insurance, but would only have recourse upon the assets of the corporation, represented by the amount paid by the insurance company to the corporation." Seaman v. Enterprise Fire &c. Ins. Co. (1884) 21 Fed. 778, 784.

Suppose both the stockholder and the corporation carried insurance on the corporation property. Could both recover? If so, how much

An intentional destruction of corporate property by an officer of the corporation and an owner of most of the stock bars the right of the corporation to re-cover the insurance. Felsenthal v. Northern Assur. Co., Ltd. (1918) 284 Ill. 343, 120 N. E. 268, 1 A. L. R. 602, Comment (1919) 14 Ill. L. Rev. 222; Kimball Ice Co. v. Hartford Fire Ins. Co. (1927) 18 Fed. (2d) 563, 52 A. L. R. 799 (Note, p. 805).