Halpin v. Ætna Fire Insurance — 30 N.Y. St. Rep. 259

Majority

p. 259

Thomas Halpin, Resp’t, v. The Ætna Fire Insurance Co. of Hartford, Conn., App’lt.^[1]

(Court of Appeals, Second Division,

Filed March 21, 1890.)

Headnote

Insurance (eire)—“ Vacant or unoccupied premises.”

Defendant insured plaintiff on “boiler, steam engines (naming all the appurtenances) used in the business of manufacturing leather and morocco, all contained in the frame building and extension situate,” etc., and the policy was made subject to the condition that if the' premises became “vacant or unoccupied,” and so remained more than thirty days without notice to, and consent of, the company, it should be void. The building was closed by plaintiff’s tenant and left in charge of one Faulkner, who kept the keys and visited the premises three or four times a week, but employed one Halpin, who lived fifteen feet from the factory building, to look after the premises when at home,'and during the day-time when he was away his wife looked after it. Held, that the premises were " unoccupied,” within the meaning of the policy, prior to the fire, and had so remained more than thirty days without notice to, and consent of, the defendant, and that plaintiff could not recover.

Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment entered upon a verdict at the Kings county circuit.

Thomas F. Pearsall, for app’lt; Nathaniel C. Moak, for resp’t.

This action was brought on an insurance policy issued February 10, 1883, to recover the damages sustained by reason of the destruction by fire of the property insured. The defendant by its -policy had insured the plaintiff in the sum of $2,000 “ on his boilers, steam engine and connections, machines, machinery, shafting, belting, pulleys, hangers, tubs, tanks, vats,

p. 260

tables, tools and all machinery and apparatus used in the business of manufacturing leather and morocco, all contained in the frame building and extension situate on the south side of Wall-about street, about 275 feet westerly from Lee avenue, Brooklyn, one year, against all loss or damage by fire to the property specified,” etc. This policy, however, was made subject to the following condition: “If the above mentioned premises shall become vacant or unoccupied, and so remain more than thirty days without notice to and consent of this company in writing, then this policy shall be void; any change within the control of the assured material to the risk shall avoid this policy.”

The fire occurred on January 4, 1884, and resulted in a total loss of the building and machinery. It appears that the plaintiff had leased the building and machinery to Hance & Underhill, who had been engaged in the manufacture of leather; that in July, 1883, they ceased business and left the premises and from that time the building was closed and the factory remained idle1 until the fire; that the plaintiff resided at Newark, N. J., and had left the factory in charge of one Faulkner, who had the keys, and visited the premises three or four times a week ; that he caused the windows to be boarded up and had one John Halpin to-watch, the premises; that Halpin lived in a house on the premises-about fifteen feet from the factory building, and looked after the premises when at home, and day times when' he was away at work his-wife looked after it. Halpin did not have a key to the factory, but whenever he wanted to go in he went to Faulkner and got it.

The facts disclosed in reference to the premises- becoming vacant or unoccupied are the same as those considered by us in. the case of Halpin v. The Phœnix Ins. Co., 28 N. Y. State Rep., 788, in which we held that the premises were unoccupied within the meaning of the policy. The condition says: “If the above-mentioned premises shall become vacant or unoccupied.” The only premises mentioned above is the building in which the boilers and machinery insured are located. The premises mentioned in the condition clearly refers to such building. Herrman v. Adriatic Fire Ins. Co., 85 N. Y., 162 .

There is no claim that the defendant had notice that the premises were vacant or consented that they might remain unoccupied. 'After the plaintiff had rested, and again after the evidence had closed, the defendant moved for a dismissal of the complaint upon the ground that the premises were unoccupied within the meaning of the policy prior to the fire and had so remained more than thirty days without notice to, and consent of, the defendant. The motions were denied and exceptions were taken. Under our - decision in the case of Halpin v. The Phœnix Ins. Co., supra, the motions should have been granted.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.