Collester, Mintz and Lynch.
Defendant appeals from a judgment entered in favor of plaintiffs on January 25, 1971 for $10,094.45. The judgment is comprised of the sum of $7,938, the stipulated amount of the fire loss involved, plus interest thereon at 6%.
The trial judge granted plaintiffs' motion for judgment at the close of all the evidence upon a finding that a contract
had been entered into between plaintiff Christopher F. Cooke, Sr., as purchaser, and the devisees and their respective spouses of the late Ella Rosenberg, as sellers, of a two-family dwelling in Newark.
The parties stipulated that defendant issued a fire insurance policy to plaintiff Christopher F. Cooke, Sr. for a three-year period commencing January 18, 1966, and that a fire loss occurred in the subject premises in the sum of $7,938, as earlier noted.
Louis Rosenberg was in the tailoring business. Cooke, who was in a similar business, agreed to make $1,000 worth of coats, for Louis Rosenberg in payment for his interest in the property. It also appears that shortly after the execution of the contract plaintiffs took possession, made repairs to the property, paid an outstanding water bill, all of which aggregated $753.70, and rented the premises to others. They also paid the first installment premium on the insurance policy of $36 out of a total of $93. At the time of the fire the policy of insurance in the face amount of $10,000 was in full force and effect.
There were certain title impediments, and apparently a caveat lodged against the probating of the will of Ella Rosenberg by a daughter, Pauline Feldstein. The will was ultimately admitted to probate, but the title problems had not yet been resolved on the date of the fire.
The insurance policy in question was issued pursuant to N.J.S.A. 17:36-5.19, which in part provides:
Every such fire insurance policy shall insure, limited to the amounts of insurance specified therein, the named insured and legal representatives, to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property * * * nor in any event for more than the interest of the insured, against all direct loss by fire * * *. (Emphasis added).
Defendant argues that plaintiffs lacked legal title. Plaintiffs expended a maximum of $1,753.70 toward the purchase and repair of the premises. Defendant contends that
in these circumstances plaintiffs should not be permitted to recover the claimed loss of $7,938 but rather only their financial interest in the property, which at most amounted to $1,753.70. It asserts that a contract for insurance against fire is ordinarily one of ...