
    Mary Dowd and Charles Grady, App'lts, v. The American Fire Insurance Company, of Philadelphia, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    Insurance—(Fire) — Retention of premium after declining to pay policy—Effect of.
    The plaintiffs paid the defendant company’s agent the premium on a certain policy of fire insurance, the building insured having been destroyed by fire. This action was brought to recover the amount of the insurance named in the policy. The defendant resisted payment because of false representations, which they were first aware of after the fire, but did not offer to return the premium. Eeld, that the retention of the premium was not a waiver of the defense.
    Appeal by plaintiffs from a judgment entered in favor of defendant after a trial at the circuit, before the court, without a jury.
    
      Nathaniel C.Moak, for app’lts; Alden Chester, for resp’t.
   Ingalls, J.

When this cause was here upon a former appeal, the judgment, which was in favor of plaintiff, was reversed upon the ground that the building which was insured, was situated upon leased ground, when the policy was obtained and when the fire occurred which rendered the insurance void under the conditions named in the policy. Dowd et al., v. American Fire Insurance Company,. 3 N. Y. State Rep., 793. That decision should now be held conclusive upon that question in this court.

Upon the recent trial the plaintiffs sought to sustain their cause of action upon two grounds:

First. That Picket, the agent of the company, when the insurance was effected, and with whom the plaintiffs negotiated for the insurance, was informed after the policy was issued, but before the fire, that the building was standing upon leased ground.

Second. That the plaintiffs paid to said agent a premium of $7.50, which had not been returned by the company to the plaintiffs, but is retained by it.

In regard to the first ground, the court has found as follows: “That neither the defendant nor said Picket had any knowledge at any time before said fire, that the building described in said policy stood on leased ground.

The evidence upon that question is manifestly too conflicting, and the plaintiffs do not show such a preponderance in their favor, as to justify a reversal of such finding. The court, with the witnesses before him, and hearing them testify, possessed an advantage over the appellate tribunal, in determining the weight to be given to the testimony of the witnesses respectively (Cheney v. The N.Y. C. and H. R. R., 16 Hun, 420). In regard to the second ground. Assuming, as we must, under the finding of the court, that neither the defendant, nor the agent, Picket, had any knowledge previous to the fire, that the building was located upon leased ground, the defendant was chargeable with no omission of duty, in not offering to return the premium, which can have the effect to prejudice its • defense, for the reason that until the company or its agent, was informed that the building stood upon leased ground, there existed no reason or motive for a rescission of the contract of insurance by the company. When the fire occurred, the rights of the parties, under the policy, became fixed, and a return of the premium could not have the effect to change the status of either party. Therefore the retention of the small premium should not be regarded a waiver of the defense, insisted upon by the defendant. Again the defendant is not asserting a cause of action against the plaintiffs, or claiming anything of them; but simply defending against the enforcement of a claim, under a policy of insurance, which the defendant claims to be void in consequence of the concealment by the plaintiffs of a material fact, which was vital to the insurance. The defense insisted upon is asserted as a shield and not as a sword, and consequently not within the princi- ' pie declared by a class of decisions which require the return of whatever has been received by the party who seeks to disaffirm a contract. Flynn v. Equitable Life Ins. Co., 78 N. Y., 569; Harris v. The Same, 3 Hun, 725. Considering this case, upon the questions which are properly here for review, we discover no substantial reason for a reversal of the judgment, and the same must be affirmed with costs.

Learned, P. J., and Landon, J., concur.  