
    Elizabeth Thieme, Respondent, v. Niagara Fire Insurance Company, Appellant.
    
      Insurance — when a house is not Vacant or unoccupied—request by both parties for a verdict, neither ashing toga to the jury.
    
    In an action brought' to recover upon a policy of fire insurance covering a frame building, the insurance company repudiated liability under a clause contained in the policy providing that “This entire policy, unless, otherwise provided by agreement indorsed hereon or added hereto, shall he void * * * if a building herein described, whether intended for Occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”
    Evidence was given tending to show that the plaintiff and her husband occupied another house situated upon the same lot as the frame building destroyed by fire; that the latter building contained living apartments and was occupied by tenants until within a few months previous to the fire; that when the tenants moved out the plaintiff’s husband placed a lounge in the building and slept therein not less than five times'a week from that time until the fire; that two days prior to the fire the. building was again rented and that on the night of that day the plaintiff’s husband slept therein. He did not, however, sleep in the building on the night immediately prece'difig the fire, although he went around the house the evening before the fire and saw that everything was right. He carried on his business upon the premises and was around the house all day.
    
      Held, that both sides having moved for the direction of a verdict and -neither party having requested the submission of any question to the jury, it was proper for the court to direct a verdict for the plaintiff, as the building was neither vacant nor unoccupied within the meaning of the quoted clause of the policy;
    That under such a clause a house does not become vacant or unoccupied as long • as there are persons living in the house for some portions of each day.
    Tan Brunt, P. J., and McLaughlin, J., dissented.
    Appeal by the defendant, the Niagara Fire Insurance Company, ■from a judgment of the Supreme Court in favor of the plaintiff, ■entered in the office of the clerk of the county of New York on the •31st day of May, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s •office on the 16th day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert Thorne, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   Ingraham, J.:

The plaintiff, the owner of a dwelling house in the city of New York, procured a policy of insurance from the defendant, by which the defendant agreed to insure the plaintiff against loss or damage by fire to the amount of $1,000 on a two-story frame dwelling situated on the rear of a lot on Mary street, in Westchester, New York ■city, for a term of three years from the 17th day of May, 1901. The complaint alleges that on or about the 5th day of July, 1901, the building was wholly destroyed by fire. The answer- of the defendant as a defense alleges that one of the conditions of the said policy of insurance was that “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, ■ whether intended for occupancy by owner or tenant,- be or become vacant or •'unoccupied and so remain for ten days;” and alleges that the building destroyéd in fact became “ vacant and unoccupied and so remained for a period of more than ten days; ” and that at the time of the fire the building was then vacant and unoccupied, and had been and remained vacant and unoccupied for more than ten days preceding the date of the fire. Upon the trial the plaintiff’s husband testified that he and his wife occupied a house upon a piece of land upon which the building that was destroyed was situated; that the building destroyed was a two-story building twenty-five by twenty-five feet, which contained living apartments ; that this building had been rented prior to May, 1901, at which time the tenante moved out; that after he moved out, the witness put a lounge in the building and slept there to take care of the house until it was rented ; that on the 3d of July, 1901, the building was rented, the .tenant paying a deposit of five dollars, and was-to take possession within a few days; that on the night of the third of July the witness slept in the premises ; that on the night of the fourth of 'July he slept in the other house; that the furniture in the .house belonged to the plaintiff; that from the time that the tenants vacated the premises in May, until the fourth of July, the witness slept in the house five or six nights a week, and sometimes the whole week; that prior to the fire there was some painting and paperhanging being done in the house; that on the night of the fourth or the morning of the fifth the house caught fire and was destroyed; that at eleven o’clock on the night of the fourth the witness went around the house,, saw that everything xwas all right, locked up. the house and went to bed in the adjoining building; that at about half-past two in the morning of the fifth the whole place was found to be on fire; that the witness carried on his business upon the premises, and was around the house all day; that upon no week from May until the building was- destroyed, did he sleep in the house less than five times a week. Other witnesses testified that the plaintiff slept in the house that was destroyed during the period that it was unrented. ' ■

At the close of the testimony, counsel for the defendant moved for a direction of a verdict for the defendant,, upon the ground that the testimony showed that the house was vacant and unoccupied, and so remained for more than ten days prior to the fire. The plaintiff also moved for the direction of a verdict for the plaintiff, and there being no request to, submit the .question to the jury, the court directed the jury to find a verdict for the plaintiff, to which counsel for the defendant excepted.

The policy of insurance is the standard policy, and the question is whether at the time of the fire the premises were vacant or unoccupied within the meaning of the terms of the policy. To forfeit the policy it was required that the premises should be or become vacant or unoccupied, and so remain for ten days. The fact that the plaintiff’s husband did not sleep in the house on the night of the fire would not avoid the policy, unless the house was vacant or unoccupied, notwithstanding the fact that he was in the habit of sleeping there at least five nights a week during the period that the premises were unrented. The reasonable meaning to be given to this provision seems to me to be that a house does not become vacant or unoccupied so long as there are persons living in the house for some portion of each day. The plaintiff and her family lived in an adjoining house, and the premises in question had been rented and occupied by the tenant. When the tenant moved away the plaintiff’s husband moved into the house. He was about the premises all day attending to his business, which was carried on there, and at night he generally slept in the house that was destroyed. This, it seems to me, was an occupation of the house within the meaning of this provision of the policy. If the plaintiff had hired a man to look out for the house and occupy it until it was rented, the mere fact that occasionally he slept away from the house would not have made it a vacant or unoccupied house which remained vacant and unoccupied for ten days. As was said by Folger, Ch. J., in Herrman v. Adriatic Fire Ins. Co. (85 N. Y. 162): “ For a dwelling house to be in a state of occupation there must be in it the presence of human beings as at their customary place of abode, not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage.” “ To occupy ” is generally defined to be “ to take and hold possession of; have in possession and use ” (Standard Diet.); to take possession of; to keep in possession ; to possess; to hold and use; as, to occupy a house or a farm ” (Imperial Diet.).

In Huber v. Manchester Fire Assurance Co. (92 Hun, 223) the policy contained a provision substantially like the one now under consideration. The tenant who was in possession of the premises went away for a visit on the 24th of August; 1892, intending to stay, five or six weeks. The house was locked and the key of the front door Was given to a friend who resided in the neighborhood. This friend went often into the house, but did not go every day. The house was to be painted on the twenty-sixth, twenty-seventh and twenty-ninth of August, and paperhanging, work was to be done at various ¡subsequent times. The last time anybody was in the house was before the seventh of September, and the fire occurred on the evening of ■September seventeenth, or early in the morning.of September eighteenth. The General Term in the fourth department, after an •examination of the authorities, held that after the tenant left the house was not inhabited in the ordinary way, unless other furniture was moved in, as the plaintiff’s furniture -was locked up; that the .intention of the plaintiff to return in four or five weeks did not make ¡an occupation during lier absence according to the doctrine of the Herrman case; as from thd time the plaintiff left on the twenty-fourth of August, to the time of the fire on the seventeenth or •eighteenth of September, no one was living in the house.

It was said by Earl, J., in Herrman v. Merchants' Ins. Co. (81 N. Y. 184) that a dwelling house is unoccupied when no one lives in it. The test seems, therefore, to be that a dwelling house is unoccupied when not used as a dwelling or living place for human beings; ¡and applying this test, can this house be said to have been unoccupied •for ton days % A member of the plaintiff’s family habitually slept •there. The house adjoined the plaintiff’s residence, the plaintiff’s husband ‘ conducted his business upon the premises, and was in or ¡about the house insured .most of the time. Temporarily there was :no tenant, although the premises had been rented before, the fire.

The clause in question contemplates that the building might be •one Which was rented and usually in the occupation of a tenant; but ' there is no provision inserted that in such ease where the premises remained unrented, the policy should be void ; but the condition is ill at whether intended for occupancy by the owner or by á tenant, if the premises became either vacant or unoccupied, the policy should be void. It is not claimed that the premises were vacant, and I do not think that they became unoccupied so long as a human being "lived in the house, using it to sleép in, or for such other purposes as ¡a dwelling is habitually used. Now, the plaintiff recognized the necessity of some one being actually in the house at night to protect it, and for that purpose her husband habitually slept there While it was unrented; and it seems to me that this was an occupation of the house within the meaning of this clause of the policy.

There are cases cited by the learned counsel for the defendant from other jurisdictions, but generally the terms of the policy are ■different from those of the policy in question, and while these cases ■have been examined, 1 do not think they would justify a reversal of this judgment.

I think the judgment and order appealed from should be affirmed, with costs.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

McLaughlin, J.

(dissenting): I am unable to concur in the opinion of Mr. Justice Ingraham. The building insured at the time it was consumed by fire was, I think, both vacant and unoccupied, which, under a provision of the policy, prevented a recovery. This provision is as follows: “ This 'entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten ■days.” The policy was issued on the 21st of May, 1901, and covered a two-story frame dwelling, which, at that time, was occupied by a tenant who shortly thereafter removed therefrom, and from that time until the fire occurred — about two o’clock on the morning of the 5th of July, 1901 — there was nothing in the building ■except the body of a carriage stored on the ground floor and a couch and one chair in one of the rooms on the second floor. This •couch and chair were put into this room by plaintiff’s husband after the tenant vacated the building, and this is what is termed in the prevailing opinion as the plaintiff’s husband “ moved into.” After the tenant vacated plaintiff posted conspicuously on the building, or some part of it, the words “to let,” and a day or two prior to the fire the building had been relet, but the tenant had not “ moved in.” The only pretense that the building was occupied was the fact that the plaintiff’s husband slept in it several nights each week, just how many he was unable to say, as is clearly evidenced by the following question which was put to him on cross-examination and his -answer to it: “ Q. Isn’t it a fact that you went there and slept a night or so, but you do not remember just how many nights you •did sleep there ? A. That is right.’5 He did not sleep in the building the night the fire occurred; on the contrary, he slept in the house which stood on the ad joining lot, occupied by himself and wife. Nor did he make any inspection nf the building the night it burned, as stated in the prevailing opinion. He testified: And the last night I slept there was July 3d, 1901. On that night I slept in the house. Between the 4th and 5th there happened to be a fire in that little house * * * which was the house on which my wife had this policy of insurance. About eleven o’clock I went all around the house where I am living now and I saw that everything was all right and then -* * * I went to bed ' * *

The appellant contends that the building was • both vacant and unoccupied, and I am of the opinion that the contention is correct. The words “ vacant ” and “ unoccupied ” in the sense in which they are here used are not synonymous. (Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162.) In determining the sense of • these words, regard, of course, must be had- to the purpose for which the' building was adapted. It was a dwelling house, and it was vacant unless it contained such articles of furniture as are usually to be found in a dwelling house. It did not contain such articles. (Martin v. Rochester German Ins. Co., 86 Hun, 35; Litch v. North British & Mercantile Ins. Co., 136 Mass. 491.) It cannot be that the body óf a wagon upon the ground floor,.and a couch and a chair in one of the rooms on an upper floor, are sufficient to prevent the building being vacant, if effect is to be given to this word in the sense in which it is used in the policy. x

It was also unoccupied. ■ “ For a dwelling house to be in a state of. occupation,” says Chief Judge Folgeb in Herrman v. Adriatic Fire Ins. Co. (supra), “ there must be in it the presence of human beings1 as at their customary place of abode, not absolutely and uninterruptedly continuous, but that’ must be the place of usual return and. habitual stoppage.” And in the' language of Judge Earl in Herrman v. Merchants' Ins. Co. (81 N. Y. 184), “ A dwelling house is unoccupied when no one lives therein.” ' It is not sufficient, therefore, that there were in it a few articles of furniture or that plaintiff’s husband occasionally slept there.. He neither lived in this building nor was it his customary place of abode. (Couch v. Farmers' Fire Ins. Co., 64 App. Div. 367; Barry v. Prescott Ins. Co., 35 Hun, 601; Huber v. Manchester Fire Assurance Co., 92 id. 223; Poor v. Humboldt Ins. Co., 125 Mass. 274; Agricultural Ins. Co. v. Hamilton, 82 Md. 88; 13 Am. & Eng. Ency. of Law [2d ed.], 274, and cases cited.) If effect be given to these authorities, then the building had not been occupied for more than ten days, which prevented a recovery.

I think the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.  