
    MAX MINZESHEIMER, Plaintiff and Applellant, v. THE CONTINENTAL INSURANCE COMPANY, Defendant and Respondent.
    Insurance—Clause against the use op spirit gas.
    1. Waiver —What is not a waiaer of the cla/ase.
    
    
      a. Knowledge by the assurers that there were no fixtures in the premises "for the use of gas, and that the occupant immediately preceding the assured used spirit gas for lighting the premises, does not constitute a waiver of the clause, or permission to use spirit gas.
    Before Monell, Ch. J., Curtis and Speir, JJ.
    
      Decided May 2, 1874.
    
      An appeal from an order made by Monell, Ch. J., by which a verdict rendered in favor of the plaintiff, for nine hundred dollars, was set aside as being contrary to law and evidence. The motion was made pursuant to section 264 of the Code of Procedure.
    
      Mr. George W. Parsons, for appellant.
    
      Messrs. Kurzman & Teaman, for respondent.
   By the Court.—Speir, J.

The action was on a policy of insurance. The defense on the trial was that the plaintiff used spirit gas in his store, which was inhibited in the policy, and that its use, without the permission of the defendant, was a violation of the warranty in the policy. On the question as to the waiver of that condition of insurance by the defendant,. the jury found a verdict for the plaintiff. On this question of waiver alone the court granted the motion to set aside the verdict on its minutes. On a careful examination of the evidence, it merely showed that the defendants knew of the use of spirit gas by a former tenant; that did not justify a finding that the plaintiff had a permission for its continued or future use.

The order must be affirmed, with costs.

Monell, Ch. J., and Curtis, J., concurred.  