
    Mary A. Stapleton et al., Respondents, v. The Greenwich Insurance Company, Appellant.
    (City Court of New York, General Term,
    April, 1896.)
    Insurance (Eire) — Occupancy of premises.
    The mere fact that a person has a blanket on the premises and visits them twice a day, but does not sleep there, does not constitute an occupation of the premises within the meaning of a- condition in the policy making it void if the premises become unoccupied or vacant and remain so for ten days.
    Appeal from judgment in favor of the plaintiffs.
    
      Niles & Johnson (W. W. Niles, Jr., of counsel), for respondents.
    Butler, Stillman & Hubbard (Adrian H. Larkin, of counsel),, for appellant. .
   Fitzsimons, J.

On the 25th day of May, 1892, and for three years thereafter, the defendant insured a house owned by the plaintiff, “ occupied as a dwelling; ” said house was burned and destroyed by a fire which occurred on April .2, 1894

The policy of insurance issued by the defendant contained the following clause:

“The entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void if the building therein described, whether intended for Occupancy by the owner or tenant, be or become vacant or unoccupied and remain so for ten days.”

For several months before the fire one Du Briss, a man employed by plaintiffs and others, visited the insured house every morning and night, but in no other way did he occupy the house. He had a few blankets there for a bed but did not sleep there, and otherwise the house was not occupied and was vacant.

As pointed out, the policy of the defendant provided that' if the insured house became .vacant and unoccupied and remained so for a period of ten days, then, and in that event, unless consented to by the defendant, the policy should be void.

In our judgment the evidence clearly shows that this provision was violated.

The house was undoubtedly vacant and unoccupied for a much longer period of time, in fact, for several months prior to the fire.

The fact that Du Briss had a blanket or two therein and visited it twice every day was not occupying it within the meaning. of the policy, and was so held by the justices composing the ■ January,. 1896, General Term of this court, nor was there a waiver of. said provisions.

It was the duty of the -plaintiffs to establish .the waiver of said provision, if any there was, and their testimony entirely fails to prove that such was the case/

At the time the policy was. issued by the defendant and accepted by the plaintiffs the house' was “ occupied as a dwelling,” for it so states, and thereafter such occupancy must have continued to keep the policy good, for if the house became .vacant and unoccupied, and remained so for a period of ten days, unless by consent of the .defendant, the policy was void.

There is no waiver indorsed upon or added to the policy, nor is there any testimony even to show that such a waiver was made by defendant or any duly authorized agent.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

"Vas Wyok, Oh. J., and McCarthy, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  