Action by John Kohlman and William Spreen against Walter Selvage, as general manager of certain underwriters. There was a judgment for defendant, and plaintiffs appeal.
The action is to recover upon a policy of fire insurance issued to the plaintiffs upon property placed in Waliabout Market, Brooklyn, in a two-story building facing on two streets. The plaintiffs used the greater part of the inside of the building for their busine'ss as dealers in wood and willow ware. At the rear of the building on one street was a platform or stoop, even with the ground floor, part of which was rented by the plaintiffs to one Sehomaker, a dealer in garden truck, for the purpose of displaying and selling his goods. He occupied the platform from 2 o’clock in the morning until about 10 o’clock in the forenoon; and at the earlier hour, it being necessary to have a light, for some days prior to the fire, he had used a gasoline lamp for that purpose, the lamp being placed upon a nail driven into the outside wall of the building. By the terms of the policy the company insured the plaintiffs on their “stock of wood and willow ware * * * contained in the brick building,” and the policy contained a privilege and a prohibition as follows: “Privilege to use electric lights in the above-mentioned premises,” and a prohibition that there should not “be kept, used, or allowed on the above-described premises,” among other things, “gasoline.” The fire having occurred, this action was brought to recover the amount of the loss, and the defense was that the policy became void because the plaintiffs had allowed gasoline to be used for lighting purposes, the explosion of which had caused the fire and loss. "Upon the close of the evidence a motion was made to dismiss the complaint, which was granted, and an exception taken thereto, and from the judgment thereafter entered this appeal is taken.
Argued before VAN BRUNT, P. J., and McLAUGHIIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.Henry Thompson, for appellants.
George H. Pettit, for respondent.
There is no serious dispute of fact, it being admitted that the fire was caused by the explosion of a gasoline lamp, which was being used by Schomaker, the dealer in garden truck, who rented from the plaintiffs the platform in the rear of the building. The serious question arises as to the construction of the terms of the policy, the plaintiffs contending that the sole subject of the insurance was the “stock of wood and willow ware,” etc., which was within the building, and not the building itself; and that the placing of a gasoline lamp upon the exterior wall of the building within which the stock was contained was not within the prohibitory clause of the policy; while the respondent is equally strenuous in claiming that the use of a gasoline lamp in the manner described, causing the ñre as it subsequently did, was prohibited by the policy. It will therefore be seen that the question presented as to the true construction of the terms of the policy is narrowed down to a determination of what was meant by the statement that the insurance covered “the stock of wood and willow ware,” etc., “contained in the brick building.” If this was the only one of the terms of the policy to be construed, there would be force in the contention that, as the premises were not insured by the defendant, but only the goods within the building, the purpose of the policy was merely to cover and deal with the stock within the building. The force, however, of this construction is destroyed when we consider the two clauses of the policy already quoted in reference