defendant, and the assignment thereof was taken to him. The plaintiff and John B. Locke were insolvent, and nothing could be collected from them on the judgment. Upon such facts, the defendant claims that the plaintiff is indebted to him in the amount of such judgment and costs, that is, $1,036.43,-and he asked from the court an order setting off against the plaintiff's claim for alimony due January, 1893, so much of his judgment as is necessary to satisfy it. The court denied the plaintiff's motion for leave to issue execution, and granted the defendant an order setting off his judgment against her claim as above stated. From such orders the plaintiff appeals to this court.

The case of Stevenson v. Stevenson, 34 Hun, 157, decided by this court in October, 1884, holds that such a claim for alimony, fixed by judgment in favor of the wife against the husband, may be reached and appropriated by the creditors of the wife by bill in equity, or upon proceedings supplementary to execution; and it places this decision upon the theory that such a claim is a debt, and that, inasmuch as there is no statute exempting it from liability for her debts, it may be taken to satisfy them as any other chose in action could be taken. It does not appear from the report of that case whether the claim against the wife was for necessaries or not, but the line of argument treats the alimony simply as a debt against the husband. The reasoning of that case fully sustains the decision in this. In Romaine v. Chauncey, 129 N. Y. 566, 29 N. E. Rep. 826, the court of appeals has since decided that alimony awarded to a wife may not be taken for the satisfaction of a debt contracted by her, and actually subsisting prior to the date of the decree. In the case before us, the debt which the husband claims to set off was not contracted until long after her right to the alimony was decreed, but such debt was not one contracted for necessaries or for any benefit accruing to herself. It was an obligation incurred solely as a surety for her son John, and the husband has none of the equities which a creditor would have who had furnished her with such necessaries and means of support as the allowance of alimony is designed to provide her with. Applied to these circumstances, the reasoning of the latter case exempts this alimony from a liability to pay the debt which the husband seeks to set off against it. In that case it is said that: "Alimony is not, strictly, a debt due to the wife, but rather a general duty of support, made specific and measured by the court." And the line of argument goes to the extent of holding that, while the alimony might be held liable to satisfy a debt contracted for her support with a creditor who had naturally relied upon it as a means of payment, it cannot be appropriated for the payment of debts contracted by her under such circumstances and of such a nature that her husband would never have been liable to pay them; that the object of the decree awarding alimony was but to continue the husband's liability for support of his wife after the divorce, and not to compel him to provide a fund for the pay ment of debts not otherwise chargeable against him. Nor should

the means so provided for the support of the wife be diverted to an entirely different purpose. Had no decree ever been granted against the defendant, he would not, as husband, have been liable to pay the note which she signed for their son John, and hence, within the decision above cited, such note was not a debt that could be collected from her alimony. If the bank could not have so collected it, there is no reason why the husband should be allowed to do so. Upon the authority of the case last cited, therefore, the order appealed from must be reversed, with costs.

MERWIN, J., concurred.

HARDIN, P. J., (concurring.) Although I joined in the decision of Stevenson v. Stevenson, 34 Hun, 157, I feel constrained to concur in the foregoing opinion upon the reasoning and authority found in Romaine v. Chauncey, (Sup.) 15 N. Y. Supp. 198, and the same case in 129 N. Y. 566, 29 N. E. Rep. 826. I therefore join PARKER, J., in reversing the order in this case.

FOLEY et al. v. FARRAGUT FIRE INS. CO.

(Supreme Court, General Term, Fourth Department. September 22, 1893.) INSURABLE INTEREST-BUILDINGS IN COURSE OF CONSTRUCTION.

The owner of land has an insurable interest in buildings in process of construction thereon by a contractor, who is to furnish all materials and labor, and be paid after completion of the work.

Appeal from circuit court.

Action by Edward H. Foley and John Costello against the Farragut Fire Insurance Company on a fire insurance policy. From a judgment entered on the verdict of a jury directed by the court in favor of plaintiffs, defendant appeals. Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ. Hiscock, Doheny & Hiscock, for appellant.

Riegel & Walker, (W. P. Goodelle, of counsel,) for respondents.

PARKER, J. The question presented upon this appeal, briefly stated, is as follows: Plaintiffs insured with defendant three wooden houses in process of construction by a contractor upon their premises, and upon stone foundations built by themselves. Under the terms of the contract, the builder was to furnish all materials, and do all the work, and he was to be paid within 10 days after the completion of the houses. The amount of the insurance was "four hundred dollars upon each of their three two-story frame, shingle-roofed buildings, and extensions thereto," etc., and was not to exceed, in all, $1,200. Soon after the insurance, and before either building was completed or accepted, a fire totally destroyed two of them, and injured another to the extent of $100. At the time of the fire, the plaintiffs had paid only $250 upon their contract.

Un

der such circumstances, are the plaintiffs entitled, in an action upon the policy, to recover, as their damages, the actual value of the property burned, or must they be confined to the value of the foundations built by themselves? Upon the trial the court held that the loss was to be ascertained from the actual value of the property destroyed, and, as there was no dispute over that amount, a verdict was directed in favor of the plaintiffs. From the judgment entered upon such verdict, this appeal is brought.

The defendant claims that inasmuch as the contractor must furnish new materials, and rebuild the houses entirely, before he can claim any compensation whatever, the plaintiffs suffer no damage by the destruction of that part under contract, and hence that they can recover nothing for it. Unless the contract indicates that it was the intention of the assured to effect the insurance for himself and any other person, who, during the continuance of the po icy, should have an interest in the property insured, (as was the case in Waring v. Insurance Co., 45 N. Y. 606,) a policy of insurance is deemed a personal contract of indemnity, and the insured cannot recover beyond the extent of his interest in the subject insured. Wood, Fire Ins. § 473; Grosvenor v. Insurance Co., 17 N. Y. 391, 392; Shotwell v. Insurance Co., 5 Bosw. 247; Murdock v. Insurance Co., 2 N. Y. 210; Cross v. Insurance Co., 132 N. Y. 133, 30 N. E. Rep. 390. But the application of that rule to the case before us does not sustain the position taken by the defendant's counsel. The plaintiffs in this action were the owners and in possession of the premises and foundations upon which these houses were erected. Although they were not yet completed, and the plaintiffs were under no obligation to pay for them at the time they were burned, they were, nevertheless, the property of the plaintiffs. They were annexed to their freehold, and added to its value. Their destruction dimin ished its value by just the value of the houses as they stood there, and hence the plaintiffs had an interest in them to just that amount. The plaintiffs' interest in the houses was none the less an insurable one because they had not been paid for. Excelsior Fire Ins. Co. v. Royal Ins. Co. of Liverpool, 55 N. Y. 343. Nor were they any less their property because the contractor was bound to rebuild them before he could demand his pay. Suppose the contractor refused to rebuild, and abandoned his contract. In that event, very clearly, the plaintiffs would lose the benefit of such houses to their premises. True, they might recover damages against him for a breach of his contract, but that would not be for the full value of the houses, and no adequate compensation for their loss. We think there can be no doubt but that the plaintiffs had an interest in the preservation of those houses upon their premises, to the extent of their value, and hence they had the right to insure such interest. Cone v. Insurance Co., 60 N. Y. 619; Riggs v. Insurance Co., 125 N. Y. 7, 25 N. E. Rep. 1058. They could do so for the very purpose of obtaining a better security against their loss than the personal obligation of the contractor. Hancox v. Insurance Co., 3 Sumn. 132. The defendant has contracted with them as if they had such inter

est, and the policy itself fixes the manner in which the loss or damage shall be ascertained; that is, it shall be ascertained or estimated according to the actual cash value of the property insured. There is no claim that there was any misrepresentation or misconception of what the defendant's interest was, and therefore no reason is shown why the defendant should be allowed to lessen the recovery against it below the amount fixed by its contract. The judg ment is correct, and should be affirmed, with costs. All concur.

REYNOLDS et al. v. WEBSTER et al.

(Supreme Court, General Term, Fourth Department. September 23, 1893.) 1. MORTGAGES-PRIORITY-SENIOR UNRECORDED MORTGAGE.

The lien of a mortgage given to secure future advances is superior to the lien of a prior unrecorded purchase-money mortgage as to all sums advanced within the limits of the amount stated in the subsequent mortgage, without notice of such prior mortgage.

2. SAME-NOTICE-RECORDING.

The recording of such prior mortgage before advances are made, but after the mortgage for advances was given, is not constructive notice to the holder of the latter mortgage.

Appeal from special term.

Action by Frank B. Reynolds and others against John A. Webster and others to foreclose a mortgage executed by one Covell to secure future advances, in which defendant Webster set up a prior mortgage given by Covell to secure the unpaid purchase money of the same premises, but which was not recorded until after plaintiffs recorded theirs. From a judgment for plaintiffs as to all sums advanced by them without notice of the prior mortgage, defendants appeal. Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ. M. M. Waters, for appellants.

F. H. Everhart, for respondents.

PARKER, J. The defendant Webster, by his conveyance to Covell, transferred all his title and estate in the premises, and, upon receiving back the mortgage for a part of the purchase price, he acquired only a lien thereon to that amount. Bryan v. Butts, 27 Barb. 503; Trustees v. Wheeler, 61 N. Y. 88. He then stood in the position of an ordinary mortgagee for value, having transferred both title and possession to Covell. The case cited from 59 N. Y. 541, (Dusenbury v. Hulbert,) does not hold any different rule. Such case merely decides that intermediate the receipt of the title by Covell and the delivery back of the mortgage, it being all one transaction, Covell could not have given any lien that would be superior to such purchase-money mortgage. While Webster held his mortgage, and before he had it recorded, the plaintiffs received the mortgage which they are now seeking to foreclose, and they prompt ly put it on record in advance of Webster. Their mortgage was

collateral to a bond in the penalty of $3,000, conditioned to pay at maturity any and all balances of account, money, notes, etc., and indebtedness of any kind at any time hereafter owing by the firm of Covell & Dickinson, or either of them, to the plaintiffs, and was intended as security for future sales of cigars, from time to time, to be sold to such firm by the plaintiffs. Such a mortgage is a valid security, and is a conveyance within the recording acts. Ackerman v. Hunsicker, 85 N. Y. 43. Both Webster and the plaintiffs, therefore, stood in their relations to Covell as mortgagees of the same premises, the security of each being liable to be affected by the provisions of the recording act. That act makes a prior, unrecorded mortgage void as against a subsequent mortgagee in good faith, and for value, whose mortgage is first duly recorded. Webster's mortgage, therefore, although prior to plaintiffs', became void as to it, provided plaintiffs are to be deemed purchasers in good faith and for value.

On behalf of Webster, it is claimed that plaintiffs were not purchasers for value, because at the time they took and recorded their mortgage they had advanced nothing upon it; also, that at most they were purchasers for value to the extent only of the amount advanced at the time Webster's mortgage was recorded, viz. $90, and that hence, under the recording act, plaintiffs' mortgage is made superior to Webster's to the extent of $90 only. The case of Ackerman v. Hunsicker, above cited, decides both of such propositions against the defendants. It is there said that such a mortgage is a potential lien for its full amount, of which subsequent purchasers or incumbrancers have notice through the record, and the rule is distinctly laid down that "a party who takes a mortgage to secure further optional advances, upon recording his mortgage, is protected against intervening liens, for advances made upon the faith and within the limits of the security, until he has notice of such intervening lien, and that the recording of the subsequent lien is not constructive notice to him." See, also, Farr v. Nichols, 132 N. Y. 327, 30 N. E. Rep. 834. These cases seem to be conclusive against the positions taken by the defendants upon this appeal. The judgment, therefore, should be affirmed, with costs. All concur.

REYNOLDS v. CITY NAT. BANK OF WATERTOWN et al. (Supreme Court, General Term, Fourth Department. September 23, 1893.) 1. MARRIED WOMEN-DEED TO HUSBAND.

A deed from a married woman to her husband, delivered after the passage of the act permitting such a conveyance, is valid, though the contract therefor was made, and the deed was otherwise executed, prior to the act.

2. DAME-VENDOR'S LIEN.

A married woman who transfers her property to her husband merely for the purpose of enabling him to raise money thereon for his businesshas no vendor's lien.