
    Mary A. Stapleton et al., Resp’ts, v. Greenwich Insurance Company, App'lt.
    
      (New York City Court, General Term,
    
    
      Filed February 8, 1896.)
    
    Pleadings—Complaint—Insurance.
    The complaint, in an action on a fire policy on a building, should be dismissed where such policy contains a provision avoiding it if the building is or becomes “ vacant or unoccupied,” and remains so for ten days, and there is evidence that the building has been unoccupied for three months, with nothing in it during that time but a blanket, and no evidence to relieve the insured from the effect of the condition.
    Appeal from a judment in favor of plaintiff.
    Butler, Stillman & Hubbard, for app’l; Niles & Johnson, for resp’ts.
   MCCARTHY, J.

—This is an action upon a fire policy, and the defense is a breach of certain warranties contained in the same. The insurance was upon a dwelling, and the fire which caused the loss took place about three months after the last tenant permanently moved out. It is conceded that there was no furniture or other material except a blanket in the premises insured during all that time. Among the provisions contained in the policy was this one:

“ That if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and 'so to remain for ten days, the policy shall be void unless provided otherwise by agreement indorsed hereon or added to.’’

We think the trial justice should have dismissed the complaint at the close of plaintiffs’ case, and also at the close of the entire case. The testimony of Mary A. Stapelton and James D. Du Bois was insufficient, and did not relieve the plaintiffs from the effect of the condition, of the policy of insurance.

Earl J., in Herrman v. Insurance Co., 81 N. Y. 184, at page 188, says:

“ A dwelling house is unoccupied when no one lives therein, but is not then necessarily vacant. * * * To avoid the policy, the premises must not only be unoccupied, but also vacant. Force should be given to both words. This is not a casual contract drawn in haste, in which language has been carelessly used; but it is a form of contract used by the defendant in its business, probaby adopted with great deliberation, every word of which, as we may suppose, has been carefully weighed.”

These premises were both ufroceupied and vacant. Herrman v. Insurance Co., 85 N. Y. 162, 168, 169.

' Plaintiffs made a breach of a binding condition, and must abide the unfortunate consequences. This being material error, judgment must be reversed, and new trial granted, with costs to the appellant to abide the event.

All concur.  