
    John Wolff, App’lt, v. The Oswego and Onondaga Insurance Company, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Insurance (Fire)—Policy oe—Renewal oe policy—Representations regarded as warranty.
    In a policy of insurance the insured made representations as to the naturc of the occupancy of the insured premises. It was a’.so stipulated in the policy among other things that if the premises should be so used or occupied as to increase the risk without notice to and consent of the insurer in writing, the policy should be void. It was further provided that
    - the insurance might be continued for such further time as might be agreed upon on performance of certain conditions and that unless otherwise specified in writing it should be considered as continued under the original representations. Held, that the insured by his representations as to the nature of the occupancy of the premises at the time of issuing the policy and by accepting the renewal in accordance with the terms of the policy in effect warranted that the premises were so occupied at the time the policy issued and that the occupation remained the same at the time of renewal.
    2. Same—Breach op warranty—Renewal op policy made void thereby.
    
      Held, that the omission of the insured to inform the insurer of a change of occupation increasing the risk made void a renewal of the policy thereafter obtained.
    Appeal from a judgment entered in Oneida county, upon findings of fact made by the circuit judge, after a trial without a jury, dismissing the complaint, with cost's.
    The action is brought upon a policy of fire insurance for $2,500, issued by the defendant to the plaintiff upon his building in Rome, September 1, 1874, for one year, and the renewal thereof given, August 30, 1875. The property covered by the insurance was totally destroyed by fire, September 25, 1875.
    The defence is a breach of warranty of the policy predicated upon an averment, to-wit: That after issue of the policy, and before renewal, there was a change of occupancy, increasing the hazard, of which defendant claims it had no notice. The trial proceeded mostly upon the printed evidence found in cases used in two former appeals, and also upon the oral testimony of the plaintiff in his own behalf, and the oral testimony of one Putnam, one of the agents of the defendant.
    In the original policy the property insured was described as follows, viz.: “ His brick and frame buildings and additions, occupied as saloon, dwelling, tailor shop and hall, situate south side of Harrison street, Rome, N. Y.”
    It was also stipulated in the policy that if the “premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain for more than thirty days, without notice to and consent of this company in writing, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the assured, without consent of this company endorsed hereon, * * * and in every such case this policy shall be void.” «.
    In the policy was the further provision, viz.: “This insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provided the premium therefor is paid and endorsed on this policy, or a receipt given for the same, and it shall be considered as continued under the original representations, and for_ the original amounts and divisions, unless otherwise specified in writing; but in case there shall have been any change in. the risk, either within itself, or by neighboring buildings, not made known to the company by the assured, at the time of renewal, this policy and renewal shall be void.”
    A renewal receipt was delivered by the agent of the defendant on August 30, 1875, referring to the policy, and containing the following language, viz.: “Which is-hereby continued in force for one year, to wit: From the 1st day day of September, 1875, until the 1st day of September, 1876, at noon.”
    The trial judge has found as facts, viz.: That, on the 9th of February, 1875, the plaintiff leased, to the city of Rome, the principal room on the first or ground floor of said building, for the term of one month, as a lodging room for the use of tramps and vagrants, and the said lessee used said. room for that purpose from the date last aforesaid, until about the 5th of May, 1875, when a new lease of said room was given by the plaintiff to said city for the term of one year thereafter, to be used by said city as a station-house, in which to lodge tramps and vagrants, and said lessee continued to use said room for said purpose,, until said building was destroyed by fire, as aforesaid; that said room was not used as a tailor shop after the city of Rome commenced to úse the same for the purpose aforesaid; that said use by said city of said room increased the risk within the true - intent and meaning of said policy, and as risks are usually rated by insurers.” Also found, “That shortly after, the city of Rome began to use said room in the manner and for the purpose aforesaid, the plaintiff notified one Kendrick S. Putnam, a member of said firm of Smith, Pond & Co., who were the general agents of the defendant at Rome, at the office of said agents, that he had rented part* of said building to said city as a station house, in which to lodge tramps and vagrants, but at the same time said to said Putnam that the time would be out on the first of the next month, and that the city could not have it any longer; that the plaintiff did not give to the defendant, or its agents, any other, further or different notice of a change in the occupancy of said building or in the risk covered by said policy, either at the time last mentioned or at any other time; that no endorsement of the notice in fact given was made upon said policy, or entry thereof made upon the books of said agents; that said Putnam made no objection to such letting as he was notified of, nor did he inform the defendant of the same.”
    Also found, viz.: “ That the said change in the risk was not made known to the company at the time of such renewal, nor did said defendant or. its agents know, at the time of such renewal, that any change in the occupancy or risk existed.”
    As conclusions of law the trial judge found, viz.: “That there was no waiver by the defendant of the condition in the policy that notice of a change in the risk, if any should occur, should be given at the time of renewal. Second, that on account of the failure to make known to the defendant at the time of the renewal, of said change in the risk, the policy and renewal became void.
    
      J. 8. Baker, for app’lt; Avery & Merry, for resp’t.
   Hardin, P. J.

Plaintiff by allowing tobe inserted in the policy the words “ on his brick and frame building and additions occupied as a Saloon, dwelling house, tailor shop and hall,” warranted the building was so occupied at the time of the issuing of the policy, and by accepting the renewal in accordance with the terms of the policy, in effect warranted that the property remained so occupied at the time of renewal. .

When the property became occupied, with the assent of the plaintiff, as a station for vagrants and tramps, without the assent of the defendant, there was a breach of the warranty.

It'may be assumed, for the purposes of this action, that the breach was waived by the defendant by the notice given to the agent of the defendant that part of the building had been rented to the city as a station house in which to lodge tramps and vagrants.

However, as the notice found by the trial judge is accompanied by the finding that the plaintiff assured the defendant’s agent, viz: “That the time would be out on the first of next month, and that the city could not have it any longer,” that notice may not be deemed an assent on the part of the defendant to a continuation of the occupation as a station for vagrants and tramps for a greater length of time than specified in the notice. The fact that the property was occupied as such station on the 30th of August, 1875, without the consent of the defendant, or without any notice thereof, and that that fact was not made known to the defendant at the time of the delivery of the renewal receipt compels the conclusion that the policy was broken and the renewal thereof broken according to the exact terms of the stipulations between the parties. Wall v. East River Ins. Co., 3 Selden, 370; Rohrbach v. Germania Ins. Co., 62 N. Y., 47; Alexander v. Germania Ins. Co., 66 id., 464.

Plaintiff by the terms of the policy at the time of application for a renewal of the same was bound to give notice of any change in the occupancy of the property which had occurred or which increased the risk over the occupancy specified in the policy.

The language of the policy was specific on that point. It was, viz: “But in case there shall have been any change in the risk, either within itself or by neighboring buildings, not made known to the company by the assured at the time of renewal, this policy and renewal shall be void.”

Under that language it was the duty of the plaintiff to inform the defendant of the change in the occupancy of the property. Inasmuch as that change increased the risk he should have made known to the company * * * at the time of renewal the fact that the risk had been increased by the lease of the property to the city of Rome for a, station-house for tramps and vagrants.” He did not do so.

The trial judge has found, viz: “that the said change in the risk was not made known to the company at the time of such renewal, nor did said defendant or its agents know at the time of such renewal that any change in the occupancy or risk existed.”

To meet this provision of the policy at the trial, the plaintiff gave evidence tending to show that he gave notice of such changed occupation in a second interview which he held with Putnam, the agent of the defendant. His testimony in that regard is flatly and positively contradicted by the testimony of Putnam. The trial judge saw the witnesses, heard them testify, observed their bearing upon the stand, and was called upon to determine which testified in accordance with the truth. It was his province to determine which he would believe. He has believed the testimony of the witness, Putnam, and found in accordance therewith. We have read the conflicting testimony and do not feel warranted in saying that the trial judge, with greater facilities for appreciating the evidence, has not found in accordance with the most reasonable view of the evidence.

Giving to the trial judge’s findings such influence as we think they are justly entitled to in considering this conflicting evidence, we are constrained to accept his conclusion upon the evidence as the same is evidenced in his findings of fact.

We think the trial judge was bound to rule as a matter of law as he did, and that we are required, due respect being had to the opinion of this court delivered on a former appeal, to hold that the conclusion reached by the trial judge was correct.

In a former appeal in this court an opinion was delivered, by Hulun, P. J., in which we find the following language, viz: I cannot agree with the referee that the policy was a valid obligation against the company at the time of the fire. The risk had been increased by reason of the use to which the building was put, after the policy was issued, and the notice to the defendant of the hiring to the city might have been sufficient to render the policy valid for the residue of the current year. But by the notice, the company was for a brief period, and when that period expired, the renting to the city would not be renewed.

When the defendant renewed the policy, it had the right to assume that the lease to the city had expired, and that the increased risk had completely terminated.

By the policy the renewal in the absence of evidence of notice that some change had been made in the building or its use was upon the terms of the original application, survey, &c., and as the mode of use had been changed to the prejudice of the company the policy was void.

Without further discussion of the questions raised by the learned counsel for the appellant we consider it our duty to follow the opinion of Judge Mullin, and to sustain the decision made at the circuit.

Judgment affirmed with costs.

Boardman and Follett, JJ., concur.  