
    WILLIAM C. CUMMINS, Plaintiff, v. THE AGRICULTURAL INSURANCE COMPANY, Defendant.
    
      Policy of insurance — prommn for forfeiture when dwelling unoccupied — “ Vacated” —meaning of.
    
    Plaintiff insured with the defendant a dwelling-house owned by him, and at the time occupied by his son and Ms family, the policy providing that ‘1 if the dwelling-house or houses hereby insured become vacated by the removal of the owner or occupant, or be unoccupied at the time of effecting the insurance, and not so stated in the application; then, and in every such case, and in either of said events, this policy shall be null and void, until the written consent of the company at the home office is obtained.”
    After the issue of the policy, and about May first, the son and his family removed ■ to plaintiff’s house to assist in the work on his farm, taking a bed and some other furniture and leaving the residue, intending to return at some future period. While the house was thus unoccupied, and on the tenth of August following, it was destroyed by fire. Held, that the abandonment of the house for so long a period was, under the circumstances of the case, a removal within the spirit and intent of the policy, and that it avoided the same.
    
      Paine v. Agr. Ins. Co. (5 N. Y. S. C. [T. & C.], 619) followed.
    The provision, “ vacated by the removal of the owner or occupant,” means an abandonment of the house as an actual place of residence, permanently or temporarily. A mere temporary absence of the family from the house for a night or a day, would not be such a removal.
    MotioN fora now trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.
    The action was brought upon a policy of insurance issued by the defendant upon a dwelling-house belonging to the plaintiff.
    
      Geo. B. Bradley, for plaintiff. Bradley Winslow for defendant.
   Opinion by

Smith, P. J.

Present — Smith, P. J., Gilbebt and Merwin, JJ.

Motion denied.  