118   RIGHTS OF INSURED

high school building, estimated to be about September 1, 1924, at which time a deed to the Lake avenue property and possession thereof were to be given to plaintiff. The contract provided that the premises were to be delivered "in as good condition as they now are, natural wear excepted ;" that defendant was to pay taxes and assessments during the period of its occupancy and until the delivery of the deed; and that iii case either party failed to per-form. the party so failing should pay to the other the sum of $3,000, which was agreed upon as liquidated damages for such failure. The contract was silent as to insurance. However, at the time of the contract, and for a considerable period prior thereto, defendant carried insurance on the premises and the contents thereof in substantial amounts, including 828,000 upon the high school building. This insurance was payable to defendant in the event of loss. No change in the form of the insurance was made at any time. It was continued after the contract was executed. Plaintiff did not secure other insurance. On October 26, 1923, while the premises were still in defendant's exclusive possession, a fire occurred without fault of either party which totally destroyed the roofs and interior of the high school building, and practically destroyed its outer walls. Defendant by reason thereof was compelled to vacate the building, and no repairs have been made upon it. The building was considered by defendant and the insurance companies as a total loss, and defendant has received from the insurers and still retains the full sum of $28,000 insurance carried thereon. This is exclusive of other amounts of insurance received by it for loss on the building's contents.

On this state of facts plaintiff asks that the contract of September 10, 1923, be specifically performed by defendant, by a con. veyauce of the title to the real estate, and by application of the insurance money upon the purchase price. llefendant declines to do this. but offers to return to plaintiff the 83.000, with interest paid by him upon the execution of the contract.

The courts below have held that defendant continued to hold the insurance money in place of the destroyed building in trust for plaintiff. With this conclusion we are not in accord. The benefit of the vendor's policy belonged to the vendor, and the vendee had no claim on the insurance money. Such is the weight of English and American authority resting on Rayner v. Preston, [1881] 18 ('h. Div. 1.

The English rule has been changed by act of Parliament. [1922] (12 & 13 Geo. V, c. 16, 105), so as to provide that the vendee may claim the insurance money received by the vendor, subject, however, to any stipulation to the contrary. The question is unsettled in this court. When the risk of loss falls on an uninsured vendee (Sewell v. Underhill, 197 N. Y. 168, 90 N. E. 430. 27 L. R. A. [N. S.] 233, 134 Am. St. Rep. 863, 18 Ann. Cas. 795), the rule in