
    Killean Martin, App’lt, v. Rochester German Insurance Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Insurance — Fire—-Occcupanct.
    Where a policy of fire insurance, which covers a certain house and farming utensils, provides that it should become void if the “building herein described be or become vacant or unoccupied, and so remain for ten days,” the condition of the policy as to occupancy is not complied with by placing the farming utensils in the house after the removal of the tenant therefrom.
    Appeal from a judgment entered on a verdict in favor of plaintiff for part of the relief asked, and from an order denying a motion for a new trial.
    
      John E. Robson, for appl’t; George F. Youman, for resp’t.
   Lewis, J.

The cause of action, as stated in the complaint, is that the defendant, in and by the terms of an insurance policy, in consideration of premium paid by the plaintiff, contracted and agreed with the plaintiff, among other things, that in case a certain house owned by plaintiff should be occupied by plaintiff or by a tenant during the three years next following the 9th day of April, 1892, and at any time during said period should be destroyed by fire, without fault or negligence of the plaintiff, and in case certain farming implements should be so destroyed, then defendant would pay to plaintiff the amount of his loss occasioned by said fire, not exceeding the sum of $400, upon the said dwelling house; and that the house so insured and occupied was destroyed by fire, to the damage of the plaintiff, etc.

The allegations of the complaint as to the insurance and the conditions thereof were not denied by the answer, and hence, for the purposes of the trial, must be considered to be the established facts. Code Civ. Proc. § 522: Potter v. Smith, 70 N. Y. 299.

At the time the policy was issued, the dwelling house was occupied by a tenant of the plaintiff. He remained therein until the 5th day of April, 1893, when he moved his family out, with the principal part of his furniture; leaving, however, a few articles of furniture in the house. The plaintiff thereupon put into the house some farming implements, which remained therein down to the time of the fire, which occurred on the 1st day of March, 1894. This was the only manner in which the house was occupied from the time the tenant left, as stated, down to the time of the fire. The plaintiff had a verdict for-dollars, for his loss on farming implements. The trial court held that the house was. “ unoccupied,” within the meaning of the policy, after the same was vacated by the tenant The policy was read in evidence, and, from it, it appeared that a portion of the property insured was a faaine dwelling house, described as a “ building situated in the town of. Rush, county of Monroe, state of New York, and occupied by tenant, and insured.” The policy further provided as follows:

“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.”

It is the contention of the appellant’s counsel that the conditions of the policy as to occupancy were complied with by the placing of the farming implements in the dwelling house after the removal of the tenant. We do not so construe the policy. The house was “ unoccupied,” within the meaning of the policy, after the tenant removed therefrom. Barry v. Insurance Co., 35. Hun, 601; Herman v. Insurance Co., 85 N. Y. 162; Halpin v. Phenix Insurance Co., 118 id. 165; 28 St. Rep. 788; Halpin v. Insurance Co., 120 N. Y. 670.

The plaintiff sought to introduce paroi evidence to show that the agent effecting the insurance gave the construction contended for by the plaintiff to. the language of the policy; but, as heretofore stated, the plaintiff, in his complaint, put a different construction upon the policy, the same as that given to it - by the trial court. The language of the policy does not seem to us to be at all ambiguous. It was an occupancy by a family that was provided for, and, in case the plaintiff’s tenant vacated the premises, it was incumbent upon the plaintiff to see that it was occupied by another family. It is a matter of common knowledge that underwriters esteem a dwelling house not occupied as a residence to be more liable to destruction by fire than one thus occupied. Incendiarism is an important factor in insurance risks. The presence of a family in a house tends to protect it against the work of incendiaries. The presence of the plaintiff’s farming implements in the dwelling cannot be said to have in any manner protected it against fires.

The trial court properly held that the plaintiff was. not entitled to recover the loss on the dwelling house. That being the only question presented by this appeal, the judgment and ordér appealed from should be affirmed, with costs of this appeal to the respondent.

All concur.  