Newmarket Savings Bank v. Royal Insurance

Knowlton, J. The only question reserved for our consideration in this case is whether the policy became void because the [376] insured premises were left vacant from the time the policy was issued until the buildings were destroyed by fire, nearly seven months afterwards. In the body of the policy, after the description of the buildings, the words “ occupied for dwelling purposes only ” were stamped in print. Among the printed conditions of the policy was this clause: “ This policy shall be void ... if the premises hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days, without the assent in writing or in print of the company.” These provisions, taken by themselves, would imply that the buildings were represented as occupied for dwelling purposes at the time of the insurance. If they had been so represented and so insured, but had in fact been vacant and had been allowed to remain so for more than thirty days, the policy would have become void under the provision which we have quoted. It is, however, conceded that the house was known by the defendant’s agent to be vacant when he issued the policy, and, if nothing more appeared, it might be held that his knowledge controlled the representation and implication contained in the policy so far as to make the clause as to the premises becoming vacant inapplicable. Bennett v. Agricultural Ins. Co. 106 N. Y. 243. Aurora Ins. Co. v. Kranich, 36 Mich. 289. Williams v. Niagara Ins. Co. 50 Iowa, 561. Bennett v. North British & Mercantile Ins. Co. 81 N. Y. 273. Haight v. Continental Ins. Co. 92 N. Y. 51. But the parties went further, and made a special provision as to the condition then existing. They wrote into the body of the policy the words “permission to remain vacant thirty days without prejudice.” That was equivalent to saying: “This is our contract in reference to the present vacant condition of the buildings. Except as modified by this contract, the policy is to be deemed what in its other parts it purports to be, namely, a policy of insurance upon buildings now occupied for dwelling purposes. By our language we have chosen to make a contract relating to property so occupied, except for the short period of thirty days, during which it may remain insured under this special agreement as unoccupied property.” The effect of this arrangement, taken as a whole, was to leave the rights of the parties after the expiration of the thirty days [377] precisely the same as if the buildings had been occupied when the insurance was effected. By the original provisions of the policy they were insured as occupied buildings. The usual provision was inserted as to their becoming vacant and remaining vacant more than thirty days. Then an exception was written in which took them out of the general provisions of the contract, and insured them as unoccupied buildings for thirty days and no longer. We are of opinion that the ruling of the court was erroneous, and that upon the facts stated in the report the verdict should have been for the defendant. New trial ordered.