
    Thomas Halpin, Resp't, v. Ætna Fire Insurance Company of Hartford, Conn., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1, 1887.)
    
    Insurance—Fire—Question of occupancy for the jury.
    A policy of fire insurance, issued by the defendant, covered certain personal property in a morocco mill, and contained this condition: “If the-above named premises shall become vacant or unoccupied, and so remain for more than thirty days without notice to, and consent of, the company in writing, then this policy shall be void." At the time of the fire the factory was idle, and the plaintiff was seeking to lease it. All the machinery
    , was in the building. One Falkner had the agency of the building and frequently went into the factory, and was continually trying to rent it: Held, that under these facts the question of occupancy was for the jury. Following Halpin v. Plmnix Ins Co., 4 NT. Y. State Rep., 867.
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury at the Kings county circuit, and from an order denying a motion for a new trial on the-judge’s minutes.
    
      Morris & Pearsall, for app’lt; John Oahey, for resp’t.
   Barnard, P. J.

The policy of insurance in this case, covered certain personal property in a morocco mill in Brooklyn, and contained this condition: “If the above named premises shall become vacant or unoccupied, and so remain for more than thirty days without notice to, and. consent of, the company, in writing, then this policy shall be void.”

The proof showed that, at the time of the fire, the factory was idle, and the plaintiff was seeking to lease it. All the machinery was in the building. One Falkner had the agency of the building, and frequently went into the factory and was continually trying to rent it. In the case of Halpin v. Phœnix Ins. Co (4 N. Y. State Rep., 867), the court decided that the question of occupancy under these facts was a question for the jury. The decision controls this case until the court of appeals pass upon it. There is no essential difference between the cases. The indorsement of the Williamsburgh Co. on its policy had no relevancy in this case. The requirements of its policy do not appear, and the indorsement itself brought nothing new in the case. The sole question was, whether the evidence showed such a condition of things as to call for a finding that the building in which the insured property was, had become vacant or unoccupied.

The judgment should, therefore, be affirmed with costs.

Dykeman and Pratt, JJ., concur.  