42 How. Pr. 97 | N.Y. Sup. Ct. | 1871
The action was upon a policy of insurance, to recover a loss occasioned by fire within the time covered by the policy. The plaintiff was non-suited at the trial.
The building was insured as a dwelling-house, only, and it appeared by the plaintiff’s own showing, on the trial, that at the time of the fire and loss, a part of the building was used as a billiard saloon, and another part as a restaurant and saloon, and that it had in it a bar, where
These terms and conditions are declared to be a part of the contract. That this description of the building is a warranty that the building was a dwelling-house, and used as such exclusively, and that no trade or occupation was carried on in it which was denominated hazardous, or extra hazardous, in the body of the policy, and in the printed classes of hazards therein, is well settled. (Wall v. The Hast River Mu. Ins. Co., 7 N. T. 370, and eases cited.) The business carried on there at the time of the fire, of using a portion of the building for a billiard saloon, and other portions for a restaurant and bar, increased the risk, and enhanced the rate of premium. Ordinarily, this would be sufficient to defeat any recovery, on the ground that the warranty, on the part of the plaintiff, had been
The question of the competency of parol evidence to change the contract was not raised upon the trial by the defendant. The plaintiff appears to have given his testimony without objection. The case cited, and also the preceding case in the same volume, of Brown v. The same defendant, (18 N. 7. 385,) distinctly hold that parol evidence of what was said between the agent and the insured at the time the contract was entered into, could not be given by the insured, on the trial, to change the contract, even when he had been led by representations on the other side, unintentionally, into making a warranty which was not true.
On the whole, I am of opinion that the nonsuit was properly granted, and that a new trial should be denied.
New trial denied.
Mullin, P. J., and Johnson and Talcott, Justices.]