
    Carey, Respondeat, vs. The Phenix Insurance Company of Brooklyn, N. Y., Appellant.
    
      January 10
    
    
      January 31, 1893.
    
    
      Insurance against fire: Change in possession by legal process: Waiver of forfeiture.
    
    
      Carey v. German Am. Ins. Co., ante, p. 80, followed.
    APPEAL from the Circuit Court for Winnebago County.
    ■Action upon a policy of insurance against fire. The defendant appeals from a judgment in favor of the plaintiff.
    The cause was submitted for the appellant on briefs by Myl/rea, Marehetti c& Bird, and for the respondent on the brief of John J. Wood, Jr., attorney, and Gale Bouelc, of counsel.
   Orton, J.

The insurance in this case is upon the same property as in that of Carey v. German Am. Ins. Co., ante, p. 80, and the same questions are involved, and this case is ruled in all respects by the decision in that case. It was held in that case, and now held in this, that the insurance policy was forfeited by a change in the possession of the property insured “ by legal process,” which took place in violation of the terms and conditions of the policy; and that such forfeiture was not waived by the local agent of the company who negotiated the insurance, because such waiver was not indorsed on the policy in writing, as required by the policy. The judgment ought to have been in favor of the company.

This having been a jury case, according to the rule of this court it must be remanded for a new trial, but there is really no need for a new trial before a jury. In such case, however, the court should direct the jury to find a verdict for the defendant, and, if the jury is waived, render judgment in favor of the defendant.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.  