
    Sarsfield vs. The Metropolitan Insurance Company.
    Where a building was described, in an application for insurance, as a “ dwelling-house,” and it was insured as such; Held that this description of the building was a warranty that the building was a dwelling-house, and used as such exclusively. And that the occupation of a portion of the building for a billiard saloon, and other portions for a restaurant and bar, at the time of the fire, which occupation increased the risk, and enhanced the rate of premium, was sufficient to defeat any recovery by the insured; on the ground that such warranty had been broken.
    
      Held, also, that the insurers were not estopped from setting up such breach as a defense, for the reason that the misdescription, if any, was their act, through their authorized agent; where there was no conflict in the evidence, all the evidence there was, on the subject of what took place at the time the contract was made, being the testimony of the plaintiff himself; who stated that upon his asking the agent to go and see the building, the latter said he was well acquainted with it, and could not go; that he then told the agent that the upper part was used as a billiard-room, and the lower part as a dwelling-house; and that thereupon the agent made out the papers and delivered them.
    MOTION", by the plaintiff, for a new trial, upon exceptions to an order directing a nonsuit, ordered to be heard, in the first instance, at a general term; judgment • being in the meantime suspended.
    
      Hakes & Stevens, for the plaintiff.
    Bemis & Near, for the defendant.
   By the Court, Johnson, J.

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 people drank, and where beer was sold by the occupants. The insurance was for $2000, on the plaintiff’s “ two story frame dwelling-house, situated on the north side of Centre street, Hornellsville, E". Y.” The contract provides that if, at any time during the period for which the policy would otherwise Continue in force, the premises shall be used “for the purpose of carrying on therein any trade or occupation, or the storing, or keeping therein any articles, goods or merchandise denominated hazardous, or extra hazardous, in any of the printed classes of hazards annexed to this policy, except as herein specifically provided for, or hereafter agreed to by this corporation in writing, upon this policy, from thenceforth, so long as the same shall be so used, this policy shall be of no force or effect.” Amongst the printed classes annexed to the policy and denominated extra hazardous, are “ billiard saloons and their contents“ eating houses“ lager beer' saloons,- liquors in glass, bar rooms“ porter houses and restaurants, to be charged twenty-five cents and upwards per $100, in addition to rate of premium on building, except in dwellings of the 1st, 2d and 3d classes.”

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 broken. But the plaintiff’s counsel insists that the defendants are estopped from setting up this breach, for the reason that the misdescription, if any, was the defendants’ act, through their authorized agent. There is no conflict in the evidence. All the evidence there is on the subject of what took place at the time the contract was made, is from the plaintiff himself. • The contract was not made at the place where' the building was situated, but at a place several miles distant. He says he made the application, and the agent asked him to go down with him to Hornellsville, where the building was situated, and get it insured, right off. That h¿ told the agent he could not go, but asked him, the agent, to go and see it. That the agent said he was well acquainted with the building, and could not go down. That he then told the agent that the upper part was used as a billiard room, and the lower part as a dwelling-house. That, thereupon, the agent made out the papers, and brought them to him in the afternoon of the same day; that he put them into his desk without any examination, and the next day paid. the premium. He further testifies that he did not know of the printed conditions in the policy, until after the fire. It seems to me this is rather too loose to be allowed to create an estoppel against a clear breach of warranty. If the mere declaration of the agent could be allowed to prove anything on the subject of his actual knowledge, it was only that he was well acquainted with the building,” not with the business that was carried on inside. Again, if the verbal information given by the plaintiff at the time, as to how the building was then used, could be held to be sufficient knowledge on the part of the agent to create an estoppel against the defendant, (in regard to which it is unnecessary to express any opinion,) the whole business carried on there was not disclosed. The plaintiff, upon his own showing, only informed the agent that the upper part was used as a billiard room, and the lower part as a dwelling-house; whereas it appears, quite distinctly, that in addition to the billiard room up stairs, there was one billiard room below, and a bar, and sufficient evidence to authorize the judge to hold, as against the plaintiff, that beer was sold at this bar, and a restaurant, or eating saloon kept there, inasmuch as there was no request on the part of the plaintiff to have the case submitted to the jury on those questions. What the agent said to the plaintiff, five or six days after the contract was made, was clearly no evidence in the case, for any purpose. Had it been made to appear clearly that the agent, before making the insurance papers, had been into and examined the building, and seen, or been there informed truly, as to the nature of the occupation, and the business there carried on, and then made out these papers and delivered them to the .plaintiff, as containing a sufficient description of the building thus occupied, to constitute a valid insurance thereof, I think the defendant would have been estopped from denying that it was valid for that purpose, within the cases of Rowley v. The Umpire Ins. Go., (36 N. 7. 550;) Benedict v. The Ocean Ins.'Go., (31 id. 389 ;) and Plumb v. The Qattaraugus Mutual Ins. Go., (18 id. 392.)

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.

[Fourth Department, General Term, at Rochester,

March 6, 1871,

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.]  