36 N.Y.S. 873 | N.Y. Sup. Ct. | 1895
This action is on a policy of insurance.issued by the defendant on the 6th June, 1892, insuring the plaintiff for one year, to an amount not exceeding $1,500, against loss or damage by fire to household furniture therein described, “all contained and while contained in the two-story shingle-roof frame building and its additions, adjoining and communicating, occupied and to be occupied as a dwelling house, and situate No. 445 on the east side of South Salina St., in Syracuse, New York.” A fire occurred late in the evening of September 17th, or early in the morning of September 18, 1892, by which the property was destroyed or injured to the amount, as the jury have found, named in the policy. In the policy there was the following provision:
“This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days."
The defendant, as one of its defenses, claimed that the dwelling house in which the property was was for more than 10 days prior to-the fire vacant or unoccupied. The trial court left it to the jury to say whether or not within the meaning of the policy the house became or was vacant or unoccupied, and they found, in effect, that it was not. The defendant claims that upon the undisputed evidence it should have been held by the court that the clause in question
The foregoing are substantially the facts, as shown by the plaintiff or as agreed on at the trial. It is quite clear that the house in this case was not vacant. The more serious question is whether or not it was unoccupied, within the meaning of the policy. The description of the subject of the insurance is coupled with the clause, “all contained and while contained” in a certain building “occupied and to be occupied as a dwelling house.” The kind of occupancy, therefore, within the contemplation of the parties, was as a dwelling house.
“We have already said enough to show our opinion that, for a dwelling house to be in a state of occupation there must be in it the presence of human beings as at their customary place of abode; not absolutely and uninterruptedly continuous; but that must be the place of usual return and habitual stoppage. We think that a verdict of a jury would not have been allowed to stand that found that this dwelling house was occupied at the time of the fire, within the terms of the policy.”
In Johnson v. Insurance Co., 39 Hun, 410, the provision of the policy was that it should be void, unless proper consent was obtained, “if the building herein described be or become vacant or unoccupied for the purposes indicated in this contract.” The policy was upon furniture. The plaintiff and her family, a week or ten days before the fire, left on a visit, leaving no one in the house. During this time the husband of plaintiff came back, and stayed in the house over night on two occasions, and he and another man stayed there the night of the fire, and the plaintiff expected to return the next day. It was held that a verdict for plaintiff should not be disturbed. In Wait v. Insurance Co., 13 Hun, 371, the condition in the policy was that, if the dwelling house should cease to be occupied by the owner or occupant in the usual and ordinary manner in which dwelling houses are occupied as such, then the policy to be void until written consent be obtained. The dwelling was occupied by' a tenant, who commenced to move out on the 15th of March, taking most of his furniture, and all his family. No one was left in the house, and on the night of the 16th it was destroyed by fire. There was some proof that the plaintiff had no notice of the removal of the tenant. It was held that the question whether or not the house was unoccupied at the time of the fire within the meaning of the policy was properly left tó the jury. In Gibbs v. Insurance Co., 13 Hun, 612, the question was whether the premises “became unoccupied.” The plaintiff slept in her daughter’s house, adjoining the premises insured, but her furniture and clothing were in her own house, and she spent the day there. It was held that the house was not unoccupied. In Kelley v. Insurance Co., 2 Wkly. Dig. 479, Fed. Cas. No. 7,658, there was no time named in the condition during which'the
The cases we have thus referred to are cited on the part of the plaintiff as supporting her view of the case. They do not seem to be decisive in that direction. A dwelling house is unoccupied when no one lives therein. Herrman v. Insurance Co., 81 N. Y. 188. In Paine v. Insurance Co., 5 Thomp. & C. 620, it is said that “occupation of a dwelling house is living in it, not mere supervision over it.” In that case the condition was that, in case the house shall be “left unoccupied” without giving immediate notice to the company, the policy should cease. The owner and occupant was absent for six weeks for medical treatment, visiting the house, however, upon different occasions, and maintaining a general oversight over the property therein contained. No notice was given to the defendant. It was held that finding in favor of plaintiff could not be sustained. In Barry v. Insurance Co., 35 Hun, 601, the tenant of the plaintiff who occupied the house at the time of the insurance left it, and gave the key to plaintiff, who thereupon commenced to plaster and whitewash it, and to move her furniture into it, with a view of occupying it; and all her furniture had been moiled in three days before the fire, but no person was living in it when it took fire. It was held that the house was unoccupied within the meaning of the provision that, if the premises became vacant or unoccupied, and so remain, with the knowledge of the assured, without notice to and consent of the company in writing, the policy should be void. And it was said that under the Herrman Case, in 85 N. Y., a dwelling house is to be deemed unoccupied when, for the time being, it is not the place of abode of human
In the present case, when the plaintiff placed practically all her furniture in the one room upstairs, filling it full, and locked the room, taking the key away with her, and then left the premises, and went to Hew Brunswick, the house ceased, for the time being, to be the place of her abode, and no one else was living in it. There was in it no inhabitant. The fact that her agent had a key, and had the supervision of the property, was not an occupation as a dwelling house. That was decided in the Herman Case. After the plaintiff left, the house was not inhabitable in the ordinary way, unless other furniture was moved in, as the plaintiff’s furniture was locked up. The intention of plaintiff to return in four or five weeks did not make an occupation during her absence, according to the doctrine of the Herman Case. There the plaintiff intended to return in the spring. Assume that, as between plaintiff and the owner, her tenancy continued, and she would be deemed to be in possession, that would not answer the requirement. The plaintiff in the Herman Case had beyond doubt the legal possession and occupancy. And so it was in the Barry Case. In this case, as in the Herman Case, there was a time fixed within which nonoccupancy might exist. The question, therefore, does not arise, as in some of the cases, whether the property was unoccupied for an unreasonable time. The parties contemplated that there might be a nonoccupancy for a certain time, thereby presumptively covering the exigencies that might be likely to arise by reason of sickness or sudden or temporary emergencies, and sufficient opportunity was given to enable the parties to protect themselves. It was assumed there might be a temporary absence, but a limit was placed. The plaintiff left on the 24th August, and from that time to the time of the fire on the 17th or 18th September, no one was living in the house. The principle of the Herrman Case, in 85 N. Y., seems to us to be directly applicable to this case, and, following that case, we see no escape from the conclusion that upon the undisputed facts it should have been held that the dwelling house became and was unoccupied, and so remained for more than 10 days.
But the plaintiff further contends that, if the house was unoccupied, it should not affect the insurance upon the personal property. The provision was that the “entire policy” should be void in the contingency named. The insurance, in terms, was on certain property contained in the building, and “while contained” in it, “occupied and to be occupied as a dwelling house.” Clearly, the provision as to nonoccupancy must be construed to refer to the particular building that was specified as containing the property, and where it was to remain, and which was then occupied, and was to continue to be occupied, as a dwelling house; and necessarily was designed to affect the risk on the personal property insured. The case of Halpin v. Insurance Co., 120 N. Y. 73, 23 N. E. 989, does not help the plaintiff; while the case of Halpin v. Insurance Co., 120 N. Y. 70, 23 N. E. 988,
Judgment and order reversed, and new trial ordered, costs to abide the event.
HARDIN, P. J., concurs. MARTIN, J., not voting.