
    James W. Eager, Resp’t, v. The Fireman’s Fund Insurance Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    Insurance (vibe)—Increase ov hazard.
    Defendant issued a policy of insurance upon a business block, part of which was vacant and part occupied as a hardware store, for the manufacture of a wood filler and for storage. The policy provided that it should be void “if the hazard be increased by any means within the control or knowledge of the insured.” Held, that this provision meant an increase of hazard, by use of the building or otherwise, beyond that existing or contemplated by both parties when the contract was made, and that whether the leasing of the vacant portions for manufacturing purposes really increases the hazard was a question of fact.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    
      I. N Ames, for app’lt; Goodelle & Nottingham, for resp’t
   Parker, J.

This action is brought upon a policy of insurance issued by the defendant upon a brick building owned by the plaintiff in the city of Syracuse. It contained the following provision:

“ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the hazard be increased by any means within the control or knowledge of the insured.”

The defense set up is that such hazard was increased by the act of the insured himself; that is, by leasing a part of the building to> a shoe factory, another part thereof to a paper-box factory, and still another part to a manufactory of electrical implements, all of which was done subsequently to the issuing of the policy, and without the consent óf the company. Upon the trial there was no dispute over the fact- that such subsequent leases had been made, but the contest was over the question whether they increased the hazard. The referee found that the hazard existing when said policy was issued, delivered, and assumed thereby, was not in any manner increased. Upon his report in favor of the plaintiff judgment was entered against the defendant for the full amount of the plaintiff’s claim. From such judgment the defendant has brought this appeal.

The main contention on the part of the appellant is that the evidence does not sustain the above-mentioned finding of the referee, and we are asked to review such finding of fact, and reverse the judgment on that ground. The policy insures a four-story brick building, describing it, and contains no allusion whatever to-the kind of business that was to be carried on within it. The provision, therefore, that the policy shall become void if the hazard be increased, etc., is not entirely a clear one. If it is to be construed entirely from the provisions that are found within itself, the contract could only mean that if any change is made in the thing insured, that is, any alteration of the building which would increase the hazard, the policy should be void. But neither party claims such to be the construction, and it is hardly reasonable to-suppose that such was the intent of the parties to it We have to-look, therefore, outside of the terms of the instrument to determine the meaning of that provision'. At the time the contract was-made, part of the building insured was being used for several different purposes, and it was manifest that the rest of it would also be thereafter occupied by other employments. The building was-built for the purpose of being rented for different employments. That appeared from an inspection of the building, and also the defendant’s agent who made the contract was so informed when he issued the policy. Under such circumstances, the provision in question may fairly be interpreted to mean that if the hazard is-increased, by use of the building or otherwise, beyond that existing or contemplated by both parties when the contract is made, the policy should become void. Whitney v. Black River Ins. Co., 72 N. Y., 118, 122. The defendant claims that the premium charged was for what is known as “ ordinary mercantile risk,” and that such fact is conclusive as to what the parties intended. But there is no evidence showing that the plaintiff, when he-made the contract, knew anything about such a risk, and therefore it cannot be assumed that he contracted with reference to-a particular use of the building, included within that term. At the time of the contract, the plaintiff was using the first floor and the basement for a, wholesale hardware business. A portion of the second story was used for the manufacture of protine, a name given to a kind of wood filler made from wood alcohol and other ingredients. The rest of that floor was used to store furniture. The upper stories were vacant. Assuming the contract to have been as above stated, it is evident that the question before the referee was whether the employments that subsequently came into the building rendered the risk more hazardous than its use for the purposes above stated. On the trial the evidence of most of the defendant’s witnesses was directed to a different question. They were inquired of whether the addition of the shoe factory and a box factory in the building would render it more hazardous than would its use as a hardware store, and they were unanimous that it would. But, upon the question whether such an addition would render it more hazardous than its use at the time the policy was issued, most of them gave no evidence at all. Hence, the great weight of the defendant’s expert evidence was not given upon the real question to be decided. The question whether the hazard was really increased was a clear question of "fact, to be determined by the referee. Wood Eire Ins., § 248; Cornish v. Farm Buildings Fire Ins. Co., 74 N. Y., 295. We cannot say that there was such a preponderance of evidence against his conclusion as will warrant our reversing it. Baird v. Mayor, 96 N. Y., 567; Lowery v. Erskine, 113 id., 52; 21 St. Rep., 917. We have examined the exceptions taken by the defendant, and do not discover any error in the rulings that has worked to its prejudice, or requires that a new trial should be granted. The judgment should be affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  