
    Thomas Halpin, Resp’t, v. The Phœnix Insurance Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed Decemmber 14, 1886.
    
    Insurance (Fire)-Polict—When building is “vacant or unoccupied.”
    Where a factory was not in active use, but a tenant was being sought for, and all the machinery, tools and fixtures were in the factory, and there was a watchman who lived alongside of the factory: Held, not to be “vacant or unoccupied ” so as to render a policy of fire insurance void, which contained a provision that if the premises were at any time vacant or unoccupied, the policy should be void.
    
      Appeal from a judgment in favor of the plaintiff entered at special term, Kings county.
    This is an action to compel the defendant to execute and deliver to the plaintiff a satisfaction of a certain mortgage for $5,000, made by plaintiff and his wife to East Brooklyn Savings Bank, and subsequently assigned to defendant; and to deliver up the bond secured by said mortgage. This bond and mortgage were executed September 20, 1872. Prior thereto, in 1870, the defendant insured the premises described in said mortgage for $2,000, and when said mortgage was executed this policy was increased to $2,500, and given to said bank as further security for the mortgage debt. This policy contained the condition that if the insured premises were at any time vacant or unoccupied without consent of the company, the policy should be void. When this policy was transferred to the bank, the parties entered into and indorsed thereon the usual agreement as to subrogation.
    The said premises were also insured by the Williams-burgh City Eire Insurance Company in the like amount, loss payable to the same mortgagee. Prior to July, 1883, all business ceased at the insured premises, and the insured building with the machinery therein having theretofore been occupied as a morocco factory, was closed and locked up, and thus remained till January 4, 1884, when said premises were totally destroyed by fire. At the time of the fire a tenant was being sought for. All the boilers, machinery, tools and fixtures were in the factory; none of them had been removed. John Halpin lived right alongside of the factory, and was a watchman in charge. The agent of the respondent used to go to the premises about every day, and went there with an applicant for its rental a few days before the fire.
    The defendant was never notified or informed in any way of the condition of the insured premises, and never agreed in writing upon its policy that the insured premises might be vacated or unoccupied, nor did it ever agree in any way that said premises might be either vacant or unoccupied. On April 9, 1884, the Williamsburgh Company paid the mortgagee $2,500, which amount was then credited on the bond. The defendant, on April 17, 1884, claiming that no ¿ability existed on its policy to the plaintiff, paid the mortgagee the f u¿ amount of the mortgage debt then existing, being the sum of $2,585.63, and received therefor an assignment of said bond, mortgage and policy, and said defendant is now the owner of said bond and mortgage. On December 31, 1884, plaintiff offered to pay defendant $100, and the expenses incurred by defendant in and about said assignment on condition, and not otherwise, that defendant would execute and deliver to said plaintiff a satisfaction piece of said mortgage.
    
      John Oakey, for resp’t; B. II. & G. Ingraham, for app’lt.
   Dykman, J.

This action was brought to compel the surrender of a bond and mortgage, and its decision depended upon the determination of a question respecting the validity and force of a policy of insurance against fire issued by the defendant upon the premises covered by the mortgage.

It was the claim of the defendant that the premises became vacant and unoccupied during the period for Avhich the policy was issued, and that by virtue of a condition in the policy against such vacancy, the policy went out of force and became ineffectual and died.

The trial judge found upon evidence sufficient to sustain his finding that the premises were not vacant or unoccupied of the time of the fire, and gave judgment to the plaintiff awarding him the relief sought by his complaint.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs.  