
    PHILIP HERRMAN, Plaintiff and Respondent, v. THE MERCHANTS’ INSURANCE COMPANY, Defendant and Appellant.
    I. Insurance—Fire.
    
    1. CONDITION OF POLICY, THAT IT SHALL BE VOID IF THE PREMISES BECOME VACANT AND UNOCCUPIED.
    
      (a) Breach, what is necessary to constitute.
    1. Vacancy and absence of occupancy, as two separate facts, must occur jointly.
    
    
      (b) Vacancy.—Definition of.
    1. Empty—void of every substance except air. a. Ergo—A dwelling-house in charge of servants, with all its furniture, cooking-utensils, beds, mattresses and summer clothing of the owner and his family, is hot vacant, although neither the owner nor any member of his family is in personal occupation.
    
      (c) Unoccupied.—Definition of.
    1. When no one has the actual use or possession.
    H. Synonyms.
    “Vacant” and “unoccupied ” are not.
    
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ„
    
      Decided March 3, 1879.
    Appeal by defendants from the order denying their motion for a new trial, and also from the judgment entered against them upon the verdict directed by the court at the trial.
    The action is to recover upon a policy made by defendants June 8, 1874, and insuring for three years plaintiff’s house and furniture, &c., at Lloyd, Ulster county, New York. The house was for years the summer residence of the plaintiff and his family, from about' the middle of May to the middle of November. November 20, 1876, the plaintiff and his family came to this city, leaving the dwelling-house and other property mentioned in the policy, in charge of his farmer, who, with his family, resided in the frame dwelling mentioned in the policy, and who were permitted to live in the main dwelling-house if they had not sufficient room in their own. The plaintiff left in the house all his furniture, cooking-utensils, piano, beds, mattresses, and the summer clothing of himself and family.
    The premises remained in the charge of the farmer and his family until the fire. They regularly went into the dwelling-house, opened, went through, aired and secured it. It was in sight from their own dwelling. They used, watched and guarded it and the other buildings and property.
    After plaintiff moved to the city, he and Ms wife visited the dwelling-house in question every two weeks, remained in it during the day, examined the property, and lunched there; and were last there three days before the fire, with painters, going through the house with, and directing them as to painting.
    Plaintiff intended to return with his family to the premises in question as their summer residence.
    Upon the trial, the defendant waived the defense of plaintiff’s refusal to arbitrate, and made no question as to the amount of the loss, or the service, or sufficiency, of the proofs of loss.
    A fire occurred April 8, 1877, destroying portions of the insured property, and caused a loss to the plaintiff of over $12,000.
    
      George N. Parsons, attorney, and of counsel, for appellant.—I.
    The motion to dismiss the complaint should have been granted, as the undisputed evidence showed that the premises, for the loss of which the action seeks recovery, had become vacant and unoccupied long before, and so remained at the time of, the fire. As to occupancy: Whitney v. Black River Ins. Co., 9 Hun, 41; Paine v. Agricultural Ins. Co., 5 Thomp. & Cooke, 619 ; Wustum v. City Fire Ins. Co., 15 Wis. 138 ; Harrison v. City Ins. Co., 9 Allen (Mass.) 231; Keith v Quincy Mu. Ins. Co., 10 Allen, 228; Wood on Ins. § 89, p. 180; Franklin Savings Ins. Co., v. Central Ins. Co., 119 Miss. 240 ; Ashworth v. Builders’ Ins. Co., 112 Mass. 423; Ætna Ins. Co. v. Burns, 5 Ins. Law Journal, 69. As to vacancy : In American Ins. Co. v. Padfield, 78 Ill. 167, the policy contained the provision that “If the house should become vacant and unoccupied, policy should be void.” The tenant had left, but some furniture remained. The court held, that a fair and reasonable construction of the language, vacant and unoccupied, was, that the house should not be without an' occupant—without any one living in it. That the words were not used in a technical but in a popular sense; and in conclusion held, that the house became vacant and unoccupied within the meaning of the policy (North Am. Ins. Co. v. Zaenger, 63 Ill. 464). In Sleeper v. New Hampshire Fire Ins. Co., 56 N. H. 401, the policy provided that it should be void if the premises should become vacant by the removal of the owner or occupant without immediate notice. The occupant removed to another town with his family and part of his furniture, without notice to the owner or the company, intending to return in eight months, or earlier, if business warranted. Fire occurred in four months. Held, that the premises were vacated within the meaning of the policy and policy void—and overrules the case in 55 N. H. 249. To same effect is Thayer v. Agricultural Ins. Co., 5 Hun, 566.
    II. It was argued by plaintiff’s counsel on the trial that inasmuch as defendant insured a dwelling for plaintiff in the city as well as this dwelling in the country, defendant’s officers must have known that plaintiff occupied one place in winter and the other in the summer, and alternately left each unoccupied during his occupancy of the other, and hence defendant was estopped from invoking this clause in defense of this action. As to this: The agreement in the policy has repeatedly and uniformly been held to be a promissory warranty, which must be strictly kept; and not like a condition of insurance, the observance or performance of which might be waived by knowledge and acquiescence (Wood on Ins. § 165, 317, and cases cited ; see also Id. 341, where warranty is concisely stated ; Mead v. North Western Ins. Co., 3 Seld. 530 ; see also Ripley v. Ætna Ins. Co., 30 N. Y. 136; Bilbrough v. Metropolis Ins. Co., 5 Duer, 587; Wood on Ins. 330, and cases cited; Lee v. Howard Ins. Co., 3 Gray, 588; Murdock v. Chenango Co. Ins. Co., 2 Comst. 210; Wood v. Hartford Fire Ins. Co., 13 Conn. 533 ; Chase v. Hamilton Ins. Co., 20 N. Y. 52; Gilbert v. Phœnix Ins. Co., 36 Id. 372 ; Alexander v. Germania Ins. Co., 66 Id. 464 ; 3 Allen, 569 ; 8 Cushing, 127 ; 10 Barb. 285 ; 7 N. Y. 370 ; Blumer v. Phenix Ins. Co., 7 Ins. Law Journal, 833, July, 1878 Poor v. Humboldt Ins. Co., Id. 874, March, 1878; Ætna Ins. Co. v. Burnes, 5 Id. 69, supra). The cases that plaintiff relied upon to the effect that knowledge on the part of the underwriter of the breach of a warranty operates to relieve from the breach, will be found to be based upon the principle of estoppel; and to decide simply that where the underwriter, with a knowledge of the breach, does some act recognizing and affirming the validity of the policy, he shall not be heard to question it after-wards.
    III. Another suggestion made in behalf of plaintiff on the trial was that all of the buildings on the farm were comprised in the word “premises” used in the policy; and that as all of them were not vacant and unoccupied, the warranty was not broken. 1. A reference to the policy will exhibit the fallacy of the proposition. The different buildings and properties were separately insured, as much so as if separate policies had been issued upon each risk. In Associated Firemen’s Ins. Co. v. Assum, 5 Md. 165, the policy was for $1,000—say $700 on books and $300 on music, &c.; and the policy contained a clause that if the assured should thereafter make other insurance on the assured premises, the policy should be void, unless notice was given. Held, that the proper construction of the policy was that if any part of the goods embraced in the policy were afterwards insured in another office without notice, the policy became void. To the same effect is Smith v. Empire Ins. Co., 25 Barb. 497 ; Whitwell v. Putnam Fire Ins. Co., 6 Lans. 166; also Ill. Mu. Ins. Co. v. Fix, 53 Ill. 151.
    
      IY. Finally it was claimed on the trial that because the words “vacant and unoccupied” were connected by a copulative conjunction, they must have a different signification; but counsel failed to show which word had a more extended or different meaning than the other, or which word saved plaintiff from the application of the evidence in this case. 1. But contracts as well as pleadings often contain synonymous terms connected indiscriminately ; as in this instance, by copulative or disjunctive conjunctions, without in any sense changing the signification (Hill v. Equitable Mu. Fire Ins. Co., 6 Ins. L. J. 314). (a) Thus we say without “let or hindrance,” when the meaning of the words used in that connection are the same. In the last and best dictionary of English synonyms, by Richard Soule, one of the synonyms of “let” is “hindrance.” (6) An instrument of assignment says, “assign and transfer, and make over,” when the words are clearly synonymous (See same author, which gives as one of the synonyms of “assign” the wmrd “transfer;” another is “make over ;” so one synonym of “transfer ” is to “ make over,” &c.). (c) So in the old action of trespass quare clausum fregit, defendant pleads that a fence was in great decay for want of “ needful and necessary ” repairs, &c., when one synonym of needful” is “necessary,” and one synonym of “necessary” is “needful.” 2. But a complete answer to the point is that the same author treats the very words in question as synonyms. The word “ vacant ” has for its synonym the word “unoccupied.” And Burrill in his law dictionary gives the legal meaning of the word “vacant” as “unfilled, unoccupied, without a claimant, tenant or occupier.” This ought to dispose of the suggestion. 3. The only case cited in support of the proposition of plaintiff was an unreported one from the general term of supreme court in this district, viz.: Woodruff v. Imperial Ins. Co., which does mot pass upon the question, but merely says that as plaintiff was surprised by an inadvértent answer of a witness about the house being unoccupied, the court below properly exercised its discretion in setting aside a nonsuit, and allowing the whole evidence on that subject to come in; and the question whether there was a distinction to be made between that case, where the words “ vacant and unoccupied” were used, and the cases cited on that argument in which the word “unoccupied” only was used, was not passed on. 4. But it will be noticed that neither of the cases in which that question was presented, viz. : Whitney v. Black River Ins. Co., American Ins. Co. v. Padfield, North American Ins. Co. v. Zaenger, Wood on Insurance, supra, were cited to that court; so that it appeared to the court, as intimated in the opinion, that that was a question which had not been passed upon judicially.
    if. B. Hoxie, attorney, and of counsel, for respondent, argued:
    The policy is to be construed in the light of the knowledge by the defendant of the character and use of the premises. It is legally chargeable with such knowledge, and if so it -is estopped to claim that the clause in question is applicable to such a cessation or suspension of occupancy as occurred here, for -such was clearly contemplated (Whitney v. Black River Ins. Co. 9 Hun, 37 [affi’d in Ct. of Appeals, Feb. 14, 1878] ; Cone v. Niagara Ins. Co., 60 N. Y. 619; Pitney v. Glens Falls Ins. Co., 65 Id. 6). The premises were not vacant and unoccupied, because they were in the charge of and occupied by the farmer and his family from the time plaintiff and his family left until the fire-—the dwelling-house in question as much so as the farmer’s own dwelling, the barns, &c., &c. •In this case the premises or the dwelling-house alone would be considered as vacant and unoccupied only if the same were abandoned as a residence or a dwelling-house, and left without any human being to use, watch and care for it, and preserve it in condition fit and necessary for use as a dwelling. A dwelling-house is not vacant and unoccupied within the meaning of this policy, where, as in this case, the household furniture, wearing apparel, &c., remain in it, the house and furniture in charge of, and receiving the constant visits, care and scrutiny of members of the establishment (the farmer and his family), periodical visits and occupation by the owner and his wife, although the family of the owner are absent, but with intention to return and resume continuous dwelling therein, be the period of such contemplated absence long or short (Whitney v. Black River Ins. Co., supra ; O’Brien v. Comm. Ins. Co., 6 J. & S. 517; Cummins v. Agricult. Ins. Co., 67 N. Y. 260 ; Shearman v. Niagara Ins. Co., 46 Id. 526 ; Gibbs v. Continental Ins. Co., 13 Hun, 611, 620). The use of the copulative conjunction in the clause in question “vacant and unoccupied,” contemplates an abandonment of the premises; certainly something more than a temporary cessation of eating and sleeping, i. e., dwelling in the house. If the dwelling house was “ unoccupied ” it was not “vacant.” The household furniture, wearing apparel, &c., all remained, and under the constant supervision of the farmer and his family. In the case of Woodruff 'o. Imperial Ins. Co., Supreme Court, General Term, First Department, May, 1877 (not reported), this precise question was considered, and determined in accordance with above views. The object of the use of the word “ vacant ”, seems to have been to prevent the mere fact that the premises might become unoccupied, from itself rendering the policy void. For that purpose they were required to be vacant as well as unoccupied, and that sufficiently distinguishes this from the cases cited on behalf of the defendants to prevent them from controlling its present disposition.. They were decided upon the effect required to be given to the clause relating alone to the fact of occupation (Keith v. Quincy Mut. Ins. Co., 10 Allen, 228; Wustrum v. City Fire Ins. Co., 15 Wis. 138 ; Ashworth v. Builders’ Ins. Co., 112 Mass. 422, 424; Paine v. Agricult. Ins. Co., 5 N. Y. S. C. [T. & C.] 619), and in no way considered the effect that should be given to the phrase made use of in the policy issued to the plaintiff.
   By the Court.—Curtis, Ch. J.

The principal question discussed and. presented at the argument was whether the policy was annulled by a violation of the condition contained in these words “if the premises shall become vacant and unoccupied, except as herein specially provided for, or hereafter agreed to by this corporation in writing upon this policy, from thenceforth this policy shall be void, and of no force or effect.”

It is apparent that for the breach of this provision of the policy two separate facts, vacancy and absence of occupancy of the premises insured, must occur, and that, too, jointly, so as to be in existence at the same time. This is what the language of the policy calls for. It is urged by the defendants that these words were not used in the policy in a technical but a popular sense. Happily for the protection of real estate, the words expressing the relations and rights of individuals and the public towards it have existed from a very remote period, and during that interval been interpreted by the courts as always possessing the same meaning. Very little has been conceded to what may . be their use in a popular sense, but it has been deemed that private rights and property were best protected by construing them strictly.

The word vacant is not the synonym of “unoccupied.” Vacant means primarily, empty,, void of every substance except air ( Webster’s Dictionary), and unoccupied is that status where no one has the actual use or possession of the thing or property in question. This distinction originates and exists in the language from which the terms descend to us (Redfield v. Utica, &c. R. R. Co., 25 Barb. 58; People v. Ambrecht, 11 Abb. Pr. 101; National Fire Ins. Co. v. McKay, 5 Abb. Pr. N. S. 449).

Although there may be sound reasons for holding that the plaintiff, in the legal sense, and according to which the agreement should be construed, had not ceased to occupy the dwelling-house, yet it is not necessary to rest the decision on this view of it. The language of the policy calls for the dwelling being left both vacant' and unoccupied before the policy will thereby become void. It cannot be, that either in the legal construction or popular sense claimed as the proper definition of the term “ vacant,” that this dwelling-house, in charge of plaintiff’s servants, with all its furniture, cooking utensils, piano, beds, mattresses, and summer clothing belonging to the plaintiff and his family remaining there, was left vacant or empty (Woodruff v. Imperial Ins. Co., First Department, General Term, not reported ; Cummins v. Agricultural Ins. Co., 67 N. Y. 263; O’Brien v. Commercial Fire Ins. Co., 6 J. & S. 517 ; reversed, but not on this point, 63 N. Y. 108).

The court properly excluded the evidence offered, to show that the defendant’s risk was increased, by the alleged vacancy and non-occupancy of the premises, as such vácancy and unoccupancy of the premises did not exist.

The judgment and order appealed from should be affirmed with costs.

Sedgwick and Freedman, JJ., concurred.  