
    Murdock and Garratt vs. The Chenango Co. Mutual Insurance Company.
    Insurance Is a contract of indemnity, and, unless the insured has an interest in the subject of insurance at the time of the loss, he is not damnified, and cannot maintain an action upon the policy.
    Where two tenants in common were insured against loss by fire, and after the insurance, but before the loss, one of them conveyed all his interest in the premises to the other; held, that they could not maintain a joint action upon the policy.
    A paper purporting to be conditions of insurance, if annexed to and delivered with a fire policy, is to be deemed prima facie a part of it, although the policy do not contain any express reference to such paper.
    And where, in the conditions of insurance so annexed to the policy, it is stated that if the risk shall be increased by any means within the control of the assured, the insurance shall be void, the insured has no right to erect other buildings on his own premises so as to increase the hazard; and if he does so, it avoids the policy.
    An application signed by the insured is also to be deemed a part of the contract of insurance, where it is expressly referred to in the policy “ as forming a part thereof.”
    In an application for insurance referred to in the policy as forming part thereof, it was stated thus: “ there is one stove; [in the building insured;] pipe passes through the window at the side of the building. There will, however, be a stove chimney built, and the pipe will pass into it at the side.” It seems, that this amounted to a warranty that the chimney should be built within a reasonable time, and that a violation of the engagement would avoid the policy.
    And where, after the insurance, the stove was removed to another part of the building, and the pipe passed through a stone fixed in the roof, and the secretary of the company signed a written consent in these words, “ consent is given that the within policy remain good notwithstanding the stove has been removed ;” held, that this was no waiver of the undertaking to build the chimney.
    Appeal from the supreme court, where Murdock and Garratt sued the Chenango County Mutual Insurance Company upon a fire policy, dated December 17, 1839. The property insured was a grist mill, and the amount of risk §3000, to continue five years. At the trial, before Edmonds, circuit judge, in August, 1845, it was admitted that the mill was wholly destroyed by fire on the 26th of October, 1842. On production of the policy, it appeared that the same was on half of an entire sheet of paper., and that on the other half there was a printed statement commencing thus—“ Conditions of Insurance ”—but no express reference to this was made in the body of the policy. The statement contained the following, among other clauses : “ All applications for insurance must be made in writing, according to the printed forms prepared by the company. Such application shall contain the place where the property is sitúa ■ ted, of what materials it is composed, its dimensions, number of chimneys, fire places, and stoves, &c.” “ If any person insuring any property in this company shall make any misrepresentation or concealment, or if, after the insurance is effected, the risk of the property shall be increased by any means within the control of the assured, or if the building or premises shall be occupied in any way so as to render the risk more hazardous than at the time of insuring, and not specified in the said application, such insurance shall be void and of no effect.”
    The “ application for insurance” was also introduced in evidence by the defendants, and contained the following among other statements: “The building is 28 by 36 feet—addition on the south side 12 by 28 feet—with 3 run of stones, 2 bolts, 1 smut mill, and one stove—pipe passes through the window at the side of the building. There will, however, be a stove chimney built, and the pipe will pass into it at the side.” The application was referred to in the policy by a clause in these words: “Reference being had to the application of said Murdock and Garratt for a more particular description, [of the property insured,] and as forming a part of this policy, &c.” It was also declared in the policy that the interest of the assured in the policy was not assignable without the consent of the company in writing, and that in case of any transfer or termination of the interest of the assured, either by sale or .otherwise, without such consent, the polby should thenceforth be void and of no effect.
    The question being raised on the trial as to the effect of (he clause in the application relating to the stove chimney, the circuit judge held that it was a warranty, and that the plaintiffs must show a performance. To show that the defendants had waived such performance, the plaintiffs then proved that soon after the insurance was effected the stove was moved and the pipe passed through a stone in the roof of the building. They also showed an endorsement upon the policy signed by the secretary of the company, in these words: “ Consent is given that the within policy remain good notwithstanding the stove in said mill has been removed, but still considered more safe than before. March 13, 1840. A. Chandler, sec’y.” Also another endorsement in these words: “Consented the within policy remain good to Nelson E. Murdock, who is sole owner now of said insured mill. Dec. 21,1840. A. Chandler, sec’y.” The plaintiffs “admitted the record of a deed of an undivided half of the insured property by Garratt, one of the plaintiffs, to Nelson E. Murdock, the other plaintiff, dated Oct. 3, 1840, and recorded Aug. 17, 1843.” It was also proved that in 1840 or 1841, a barn and horse shed attached were built for the accommodation of customers, the nearest part of which was from 20 to 30 feet from the mill. There was some evidence tending to show- that the risk was increased by this erection.
    The defendants moved that the plaintiffs be nonsuited on the grounds, 1st. That the warranty in the application as to the erection of the chimney avoided the policy. 2d. That the joinder of Garratt in the action was fatal to a recovery. 3d. That the erection of the barn increased the hazard, and without notice to the company, rendered the policy void. The circuit judge refused to nonsuit the plaintiffs; and as to the ground last mentioned, he held that although the hazard was increased, that was no defence, as the plaintiffs had a right to build on their own premises. The defendants excepted. The circuit .judge instructed the jury that if the engagement in the application to build a stove-chimney had not been waived by the de fend ants, they were entitled to a verdict, and he submitted the question of waiver as one of fact. The defendants excepted to the charge. The jury found a verdict in the plaintiffs’ favor for $3109,70. The defendants moved for a new trial on bill of exceptions, which was denied by the supreme court sitting in the Sixth District. They then appealed to this court.
    
      
      N. Hill, Jr. for appellants.
    I. The engagement in the application for insurance in relation to the stove chimney constitutes a part of the policy, and amounts to a warranty. Not being complied with, this avoids the contract. (2 Duer on Ins. 657, 721, n. 2; id. 749, n. 6; Steel v. Lacy, 3 Taunt. 285; Feise v. Parkinson, 4 id. 639; Edwards v. Footner, 1 Campb 530; Murray v. Alsop, 3 John. Cas. 47; Bowden v. Vaughan, 10 East, 415; Burrit v. Saratoga Company, 5 Hill, 189; 4 id. 329, 333, 336; 2 Denio, 75, 80, 81; 10 Metc. 214; 2 Caines, 160, 161.) The consent signed by the secretary did not even profess to waive the performance of this part of the contract. He only consented that the policy might remain good notwithstanding the removal of the stove, and there was no question of fact to submit to the jury in respect to a waiver of the building of the chimney." If the insured had a reasonable time within which they might perform this engagement, it is a sufficient answer to say, that nearly three years intervened between the date of the policy and the loss of the property by fire, and that in all that time they did not attempt or commence a performance.
    II. Garratt having by deed, before the fire, conveyed his interest in the property insured to Murdock, cannot maintain the action, and the joinder of him as plaintiff is therefore fatal. The company having consented that the policy remain good to Murdock, “ the sole owner,” the action might and should have been brought by him alone. (Charter of the Comp., Laws of 1836, p. 314; id. p. 42, § 7; Mann v. Herkimer Ins. Co. 4 Hill, 187; Granger v. Howard Ins. Co. 5 Wend. 200, 203; Ferris v. North Am. Ins. Co. 1 Hill, 71; 3 Denio, 303.)
    III. The building of the barn, after the insurance, increased the hazard, and this being a violation of one of the conditions of insurance, avoided the policy. The conditions being annexed to the polic~ formed a part thereof, although not in terms referred to in the policy. (1 Phil. on Ins. 26, 27, n. a; 3 Hill, 501; 6 Wend. 494; 4 Camp. 62; 1 John. Cas. 343; 1 T. R. 343; 5 Pick. 181; 16 id. 502; 5 John. 368; 7 id. 527.) The circuit judge decided this question as one of law, placing his decision upon the ground that the plaintiffs had a right to build on their own premises, thus withdrawing the question of fact, whether the hazard was increased, from the jury. (17 Wend. 543; 21 Pick. 162.)
    
      M. T. Reynolds, for respondents.
    I. The defendants’ motion to nonsuit on the ground “that the warranty in the application as to the erection of the chimney avoided the policy,” was properly denied by the circuit judge. The clause in question was not a warranty, but a mere expression of an intention, amounting, at most, to a privilege reserved. (Alston v. Mechanic's Mutual Ins. Co., 4 Hill, 329.) The reference to the application by the policy, is only “for a more particular description” of the building insured—and its descriptive part only is adopted. (Trench v. Chenango Co. Mu. Ins. Co., 7 Hill, 122; The Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Snyder v. Farmers' Ins. & Loan Co., 13 id. 92.) The clause in question is in no respect descriptive. If the clause in question be deemed an obligatory agreement on the part of the plaintiffs to build the chimney, then the consent of the company to the removal of the stove, and a different arrangement as to the pipe from the one contemplated in the application, waived the stipulation to build the chimney, and estops defendants from urging this objection. (Granger v. Howard Ins. Co., 5 Wend. 200; Dezell v. Odell, 3 Hill, 215; Potter v. Ontario & Liv. Ins. Co., 5 Id. 147.) And this was a question of fact, left properly to the jury. Ho time being mentioned, the plaintiffs were at all events entitled to a reasonable time for building the chimney. (Atwood v. Cobb, 16 Pick. R. 227.) And this was a question of fact for the jury, and no ground of nonsuit. (Ellis v. Thompson, 3 Mees. & Welsby's R. 445; Lawrence v. Dole, 11 Vt. Rep. 549; Watts v. Shepherd, 2 Ala. R. 425; Sawyer v. Hammett, 3 Shep. 40.)
    II. The judge properly refused to nonsuit on the ground “ that the joinder of Grarratt, as a plaintiff in the action, is fatal to a recovery.” Policies of insurance are mere choses in action, and at common law, an action by the assignee, in case of loss, is properly brought in the- name of the insured in the policy. (Jessel v. Williamsburgh Ins. Co., 3 Hill, 88; Granger v. 
      Howard, 5 Wend. 200; Traders’ Ins. Co. v. Roberts, 9 id. 404.) The statute allowing suit to be brought in the name of the assignee, did not take away the common law right. (Scidmore v. Smith, 13 John. 322; Alney v. Harris, 5 id. 175; Gooch v. Stephenson, 1 Shep. 371.) The statute declaring the policy void in case any property insured is aliened, applies only when the whole insured interest in such property is sold. (Granger v. Howard Ins. Co., 5 Wend. 200, 203; Glover v. Tuck, 1 Hill, 67, 69; Morris v. Keyes, 1 id. 540, 542; Kay v. Bolton, 6 Term R. 133, 137; Jones v. Jones, 6 Shepley, 308; Chit. on Con. 79, 5th Am. ed.) Nor is the sale, as in this case, of one tenant in common to another, within the spirit and intention of the statute. The provision against alienation was adopted for the protection of the company against the carelessness, &c., of one who might be placed in possession by alienation. In this case, the one left in possession by the sale, is the one with whom the defendant contracted and with no greater rights than he had before. (4 Kent’s Com. 370.) The suit is properly brought in the name of the insured in the policy, to recover the interest of Murdock, which remained unaffected by the sale. (Reed v. Cole, 3 Burr. Rep. 1512; Stetson v. Mass. M. Fire Ins. Co., 4 Mass. Rep. 330; Etna Ins. Co. v. Tyler, 16 Wend. 385; Trench v. Chenango Ins. Co., 7 Hill, 122.) The consent of the defendant endorsed upon the record, (after the sale,) that the policy remain good to Murdock, waived all objection on account of such sale, and estops the defendant from raising the objection now. (Granger v. Howard Ins. Co., 5 Wend. 200; Dezell v. Odell, 3 Hill, 215; Potter v. Ontario & Liv. Ins. Co., 5 id. 147.)
    III. The erection of the barn was no ground of nonsuit at the trial. There is ho prohibition against the erection of buildings on the premises, except in the conditions annexed, which form no part of the contract here. (Roberts v. Chenango Ins. Co., decided in 1846.) The evidence of the witness, Chandler, that in his opinion the hazard was increased, was illegal, and was objected to and should be disregarded. (Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, 77; Grant v. Howard Ins. Co., 5 Hill, 10, 15; 2 Hall’s N. Y. Rep. 632.) It was a question of fact for the jury, and no ground of nonsuit. (Cases above cited, and Roberts v. Chenango Mu. Ins. Co. decided 1846.)
   Cady, J.

It has long been settled that upon a policy against loss by fire, no recovery can be had unless the insured has an interest in the subject insured at the time of the loss ; the contract is regarded as one for an indemnity to the amount insured, and unless the insured has an interest at the time of the loss, he is not damnified and cannot be entitled to recover. (2 Philips on Insurance, 601; 3 Kent's Com. 371; 2 Atkyns, 534.) When Garratt sold all his interest' in the property insured he most certainly avoided the policy as to himself: he no longer had any interest in the property which could be damaged by fire; he could lose nothing, and could not therefore claim damages.

As a general rule, whenever a contract is made to two jointly, each can release or destroy the contract so that no action can be sustained on it. If there be two obligees in a bond, either can discharge the whole on any terms he pleases, so that no action can be had on it. If he wrongfully releases, his coobligee will be entitled to'a remedy against him, but the obligor is discharged as to both. So it is a rule in pleading, that the plaintiff or plaintiffs must aver every fact necessary to show a right to recover, and every such necessary averment must be proved. In conformity with that rule, the plaintiffs in this case, in the second count of their declaration, aver “ that from the time of making the said last mentioned policy until and at the time of the loss thereinafter mentioned, and during the time said policy was in force, the said plaintiffs owned and were interested in the property in said policy of insurance mentioned, to a large amount, to wit, to the amount of $4000.” This averment cannot be struck out as surplusage. The plaintiffs were bound to prove it in some way ; or at all events, if it was disproved the plaintiffs could have no right to recover. It was in evidence that one of the plaintiffs on the 3d of October, 1840, conveyed one half of the insured property to the other defendant in error. Thus it was proved, that after the making of the policy and before the loss, one of the insured had parted with all his interest in the property insured, and this disproved the averment that the plaintiffs were interested in the property at the time of the loss. The evidence showed that only one of them had an interest. Whether he might not have maintained an action in his own name is not now material to inquire. The question is, whether an action can be sustained in the names of both when one has no legal interest in the suit. The joint interest in the property insured was destroyed when one conveyed all his interest to the other. That act, in which both concurred, rendered it impossible that a loss could afterwards happen within the meaning of the policy; the joint property of the insured could not thereafter be destroyed by fire, because they had no such property. In the case of Howard & Ryckman v. The Albany Insurance Company, (3 Denio, 301,) it was held that an action could not be maintained in the names of two, after one had conveyed all his interest in the property insured to the other. That case cannot in principle be distinguished from this.

In general, the action on a contract must be brought in the name of the party in whom the legal interest in such contract is vested. (1 Chit, on Pl. 3.) The moment that Garratt sold all his interest in the property insured, he ceased to have any interest in the contract -of insurance. And I have not been able to discover a single" case in which a person having no legal interest, has been allowed to maintain an action at law alone or with others. There are many cases where a person having no equitable interest may be a plaintiff in an action at law. For example, an obligee in a bond assigns the bond, yet an action at law can be brought in his name, because the bond, not being assignable at law, he is regarded at law as the tiwner of the bund so far that a suit may be maintained in his name So if there be two obligees and one assigns all his interest in the bond to. the other, yet he is regarded at law as the joint owner of the bond, and must be a plaintiff in an action on the bond, although in equity, he has parted with all his interest in the bond. But in this case, when" Garratt sold his estate in the mill, his whole legal and equitable interest in the mill passed to his vendee ; he retained no interest in the mill or policy, either legal or equitable. The conveyance of the mill did not operate as an assignment of the policy, but as a destruction of it; his legal and equitable interest in the policy was gone.

If one of two owners of a mill who are jointly insured, sell his part to a stranger, it may appear like a hardship, that such sale should destroy the policy, but it is no more than happens in all cases in which there are joint promisees, covenantees or obligees, and one of them discharges the promise, covenant or bond. If one.be injured by the act of the other, he has a remedy against the wrongdoer. In this case, however, both the promisees concurred in the act which destroyed the joint remedy on the contract, and neither has any just ground of complaint. The purchaser in this case might, by complying with the 7th section of the charter of the defendants, have secured to himself the full benefit of the policy, and sued in his own name.

In the case of Jessel v. The Williamsburgh Ins. Co., (3 Hill, 88,) the insured had assigned the policy with the consent of the insurer, and then a loss happened, and the court held that the assignee could not sue in his.own name, the legal title being in the assignor. In the case of the Jefferson Ins. Co. v. H. & D. Cotheal (7 Wend. 72,) the policy was made to H. & D. Cotheal, or whom it might concern, and if any loss happened it should be paid to them. A loss did happen, and they were allowed to recover for the whole loss, although they owned but half of the property insured. They had the legal title to the policy, and a recovery in their names might be, in part or in whole, for the benefit of others.

The case of the Traders’ Ins. Co. v. Robert, in error from the superior court in the city of New-York, (9 Wend. 404,) shows how solicitous the courts of law are to protect the equitable rights of assignees ; and it may well be doubted, whether the court in that case did not go too far in order to protect the assignee. In that case, Thomas Robert, on the 1st of June, 1827, mortgaged certain houses to Francis Bolton to secure the payment of $5500. On the 5th of June, in the same year, he effected three policies against fire, and on the same day, with the consent of the insurers, assigned the policies to Francis Bolton. One of the policies covered two houses. After these policies were assigned, and before any loss, Thomas Robert insured the same property in The Phoenix Fire Insurance Co., of which he gave no notice to the plaintiffs in error, and that neglect of his would have avoided the prior policies had he not assigned them. Two of the houses which were insured together at $2200, were destroyed by fire, and the assignee of the policy brought an action in the name of the insured to recover for the loss. On closing the preliminary proofs, the defendants moved for a nonsuit on the following, amongst other grounds. 1st. That the declaration averred that the interest in the subject matter insured was in the plaintiff, and the proof showed that he had absolutely parted with his whole interest previous to the loss. 2d. That the declaration averred that he had not made any other insurance, and the proof showed the contrary ; and 3d. That the declaration averred that the plaintiff, in the affidavit by him made, stated that no other insurance had been made on the same property, whereas the affidavit on the trial set forth another insurance effected by the plaintiff. The motion was denied, and a verdict and judgment recovered in the superior court, to the amount of the loss, and that judgment was affirmed in the supreme court. In the opinion given in the supreme court, no notice whatever is taken of the first ground upon which the motion for a nonsuit was made; on the contrary, that court say, “ the only difficulty in the case grows out of the fact that the policies on which this suit was brought were assigned to the mortgagee of the premises, and that the mortgagee subsequently insured his remaining interest in another office, without giving notice to the defendants.” This the court held did not avoid the first policy, which had previously been assigned with the assent of the insured, to Francis Bolton. That after such assignment, the assignor could do no act to defeat the rights of the assignee. Whether, if the insured had after the assignment sold all his interest in the subject insured, an action could have been maintained in his name, was not decided, unless that question was decided under the general words in the opinion, that no subsequent act of the assignor could prejudice the rights of the assignee. But that case rests upon very different principles, from those applicable to this case. In that case, the policy had been regularly assigned ; in this case no assignment of the policy was made, but the interest of one of the insured was sold to the other, and the grantee of the subject insured does not as such grantee acquire any rights as to the policy. On this ground, I think the judgment ought to be reversed.

There is another ground on which a new trial ought to b< granted. The conditions annexed to the policy formed a pari of it. This was so held in the case of Roberts v. Chenango Mutual Insurance Company, (3 Hill, 501.) The conditions in that case, as in this, were on the same sheet with the policy, but there was no express reference in the policy to the conditions annexed. (5 Hill, 193.) In the case of Snyder v. The Farmers’ Insurance & Loan Co. (13 Wend. 94,) it is said, “the proposals and conditions attached to the polic)r form a part of the contract.” In this case the conditions of insurance were annexed to the policy, and one condition is, that if after the insurance is effected “ the risk of the property shall be increased by any means whatever within the control of the assured, &c. then the insurance shall be void.” In this case, after the insurance the insured built a barn and shed near the mill, which the insurers insisted increased the risk; and one witness testified that he should think the hazard was increased. The judge, however, ruled that although the risk was increased, the erection of the barn was no defence,” as the plaintiffs had a right to build on their own premises.” In this we think the judge erred. The jury should have been instructed that if in their opinion the risk was increased by the erection of the barn, that the policy was thereby avoided. The question whether the risk be increased belongs to the jury. (5 Hill, 10.) A new trial, therefore, ought to be granted, costs to abide the event of the suit.

Strong, J.

The clause in the written application made by the respondents that “ there will, however, be a stone chimney built, and the pipe will pass into it at the side,” contains either a simple representation, or a promise. A representation applies to the present, a promise to the future. There is not, in my opinion, any such thing as a promissory representation. The terms involve a contradiction. If there was any representation in the sentence which I have extracted from the application, it was simply of a present intent to make the specified change. If the applicants actually intended at the time to do so, there was no fraud in making the assertion, and although they may have subsequently changed their minds, and therefore abstained from performing the proposed work, the policy of insurance would not have been vitiated on the ground of misrepresentation. But if the respondents had not at the time when they applied for the policy any intent to effect the indicated change, it was fraudulent in them to make the representation, and that like any other fraud would vitiate the contract to which it had led. There may be difficulties in the way of proving the nonexistence of an alleged intent, but I think that a jury would be authorized to infer it where no attempt has been made to carry it into effect, and no reason for an actual change of mind had been proved. Had the decision of this cause depended at all upon that question, it should have been submitted to the jury.

But I think that the clause in question went further than a mere representation. It says in express terms that the change will be made, not simply that the respondents intended to make it. This, taken in connection with the attending circumstances, constituted it a positive engagement, and by the express terms of the policy it formed a part of and qualified the contract of insurance. In the last particular it differs from the case of Alston v. The Mechanics’ Mutual Insurance Company of Troy, (4 Hill, 329,) where the promise was verbal, and not at all referred to in the policy. There it was properly held that evidence could not be received of a parol promise to qualify a written contract, but Senator Bokee said that if the stipulation in that case (providing for the substitution of a stove for a fire place) had been contained in the policy, the case would present such a violation of contract on the part of the assured as would probably bar him from a recovery. The promise in the case under consideration had direct reference to the extent of the risk; it would be less if the change was made than it was at the time of the application. Taking the two papers together the insurers assumed the existing risk until a reasonable time should ha.ve elapsed to make proposed changes, and after that the proposed diminished risk only, and charged a premium accordingly. The promised change was therefore vital to the continuance of the responsibility. What was a reasonable time for making the alteration was scarcely a question in this cause, as it was never attempted.

It was supposed by the counsel for the respondents that the performance of the promise was waived, or rather that the company accepted of a change of location of the stove as a substitute. It is true that the secretary of the appellants, within three months after the insurance was effected, signed a consent that the policy should remain good, notwithstanding the stove had been removed. Nothing was said about dispensing with the stipulation to construct a stove chimney and carry the pipe into it, nor could the secretary have designed to refer to that, as he added to the consent the remark that it was considered more safe than before—evidently referring to the change of location. That the secretary did not actually intend to waive the performance of the promise made by the assured is evident from the fact, to which he testifies, that when Murdock informed him of the fire, he asked if the chimney had been built.

I think that the policy became inoperative by reason of the non-performance of the promise made by the assured after a reasonable time to make the proposed change had elapsed. There can be no question but that the respondents had abundant time to perform the work long before the fire, which occurred nearly three years after the date of the policy.

The objection that this action cannot be maintained in the names of both the assured when one of them had previously to the loss conveyed all his interest in the property covered by the policy, is, I think, well taken. The plaintiffs aver in their declaration that they had sustained a loss by fire, but the assertion was untrue as to the party who had previously parted with his interest. The averment was material, and the failure to prove it, or rather the proof to the contrary, was therefore fatal to a recovery. (Howard & Ryckman v. The Albany Insurance Company, 3 Denio, 301.) In the case cited Chief Justice Bronson says, “ I agree that in fire policies the assured must have an interest at the time of the loss as well as when the contract is made. (The Saddlers’ Company v. Badcock, 2 Atk. 554; Lynch v. Dalzel, 3 Bro. P. C. 497; 3 Kent, 370.) And so if he has parted with all his interest before the loss happens he cannot recover. But he does not fail on account of any vice in the contract, but for the reason that he has sustained no loss or damage.” It is said, however, that in this case there was no positive evidence that the title of one of the plaintiffs had passed to the other previous, to the fire, as the deed from Garratt to Murdock was not recorded until some time afterwards. But the deed was dated long before that accident, and as between the parties must be presumed, in the absence of any evidence to the contrary, to have been executed and become effective at the time when it bears date. Besides, the plaintiff Murdock procured from the secretary of the insurers a certificate dated Dec. 20, 1840, nearly two years before the fire, stating that he, Murdock, was then the sole owner of the mill insured, and gave that in evidence on the trial. It is true that the assignees of a chose in action had ordinarily, before the existing statute, a right to maintain a suit upon it in the name of the assignor who was originally a party. But that was to prevent a failure of justice, and was applicable only to cases where the assignee could not proceed in his own name. In this case, however, the grantee of the insured property, by the express provisions of the statute, succeeded to all the rights of the grantor, and one of them was to maintain a suit in his own name. The necessity of using the name of another than the plaintiff in interest failing, the rule is inapplicable. (3 Denio, 301.)

I am also clear that the learned judge who tried this cause erred in deciding, that if by the erection of the bam near the mill the risk was increased, that was no defence to this suit, notwithstanding the condition to the contrary on the back of the policy, and which I concur with my brethren in thinking, was under the circumstances binding upon the parties; and more especially in assigning as a reason for such decision that the plaintiffs had a right to build on their own premises. Undoubtedly the proprietor of an insured building on his own premises has. so long as he is free from any actual intent to destroy it, a right to surround it with what danger he pleases ; he may if he chooses construct a powder magazine within a rod of an ordinary dwelling house which he has insured at the usual moderate rate, but can it be gravely contended that by reason of this ordinary right of property, the policy would still be valid ? Whether in this case the erection of the barn so near to the mill increased the risk was a question of fact proper for the consideration of the jury, and the judge was right in refusing to grant a nonsuit on that ground. But he was wrong in so deciding the point and subsequently charging the jury, as to withdraw the question altogether from their consideration. For these reasons I think that a new trial should be ordered.

Jewett, C. J.,

also delivered an opinion in favor of a new trial, on the ground that the joinder of Garratt as plaintiff was fatal to the action. He also concurred in opinion that the clause in the application relating to the stove pipe amounted to a warranty ; but whether the warranty was broken or not depended on the question whether a reasonable time had elapsed to perform the undertaking. That he thought was a question for the jury, and therefore a nonsuit on that ground was properly refused. He also concurred in opinion that the circuit judge was wrong in holding that the erection of another building on the premises of the insured would not avoid the policy, if the hazard was thereby increased; but whether the hazard was increased, was also a question for the jury, and inasmuch as no request was made to submit that question to them, he saw no reason for granting a new trial on that ground.

New trial granted. 
      
      
        Tillou v. Kingston Mut. Ins. Co., 5 N. Y. 405; s. c. 7 Barb. 570.
     
      
       An increase of the risk, with or without the knowledge of the assured, not made known at the time of a renewal, avoids the policy, under the usual clause. Brueck v. Phoenix Ins. Co., 21 Hun 542. And a provision that the insurer, in case the premises should be so occupied as to increase the risk, may cancel the insurance, on notice, does not affect the clause providing agaiust an increase of risk by the act of the assured. Williams v. People’s Fire Ins. Co., 57 N. Y. 274.
     