Halpin v. Phenix Ins. Co.

• Decision Date: 14 January 1890
• Parties: HALPIN v. PHENIX INS. CO.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 165

23 N.E. 482

HALPIN

v.PHENIX INS. CO.¹

Court of Appeals of New York, Second Division.

Jan. 14, 1890.

Appeal from a judgment of the general term of the second judicial department, affirming a judgment entered upon the decision of the special term.

The action was to compel the defendant to execute and deliver to the plaintiff a satisfaction of a mortgage executed by the plaintiff and his wife to the East Brooklyn Savings Bank, and subsequently assigned to defendant, and to deliver up the bond secured by said mortgage. The defendant had issued a policy of insurance for $2,500 to the plaintiff upon the building on the mortgaged premises, which contained a condition making it void in case said building became vacant or unoccupied without the consent of the company, which policy was assigned to the mortgagee. The mortgagee also held a policy for like amount in the Williamsburgh City Fire Insurance Company. The buildings were destroyed by fire on January 4, 1884, and soon thereafter the Williamsburgh Company paid the amount of its policy to the mortgagee; and such amount was indorsed upon the mortgage. The defendant refused to pay its policy, on the ground that at the time of the fire the buildings were unoccupied, and on or about April 17, 1884, took from the mortgagee an assignment of the bond and mortgage held by it, paying therefor the sum of $2,585.63. On December 31, 1884, the plaintiff, claiming that he was entitled to have credited on the bond and mortgage the amount of the policy issued by defendant, tendered to it the sum of $100 for interest and expenses incurred in and about the assignment, and demanded that defendant deliver to him the bond and mortgage, and execute and deliver to him a satisfaction of the mortgage, which defendant refused to do. The trial court found as a fact ‘that at the time of the fire the insured premises were in charge of, and in the occupancy of, the plaintiff,’ and gave judgment for the plaintiff.

FOLLETT, C. J., and VANN, J., dissenting.

H. C. M. Ingraham, for appellant.

N. C. Moak, for respondent.

BROWN, J., ( after stating the facts as above.)

The appellant excepted to the finding that ‘the insured property at the time of the fire was in the occupation of the plaintiff,’ and asks this court to review that finding, on the ground that it is without evidence tending to sustain it. It is claimed by the respondent that that question is not reviewable here, for the reason that the case contains no statement that all the evidence given on the trial is contained within it, and cites Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446, in support of his contention. In the case cited it was sought to have the general term review a finding of fact made upon conflicting testimony, and this the general term refused to do, in the absence of a statement in the case that it contained all the evidence given on the trial; and this court sustained that ruling. The case has no application to the question now presented, as a finding without evidence to sustain it is a ruling upon a question of law, (Code, § 993,) while a finding upon conflicting testimony is a ruling upon a question of fact, (Id. § 992). This court reviews rulings upon questions of fact on appeals from judgments entered upon reports of referees, or on decision of a court without a jury, in the single instance of a reversal of the judgment by the general term upon the facts. But a finding of fact without evidence to support it has always been regarded as a ruling upon a question of law, and, if excepted to, presents a legal question reviewable in this court. Mason v. Lord, 40 N. Y. 477;Cox v. James, 45 N. Y. 557;Perkins v. Hill, 56 N. Y. 87;Pollock v. Pollock, 71 N. Y. 137;Sickles v. Flanagan, 79 N. Y. 224. Under the old Code, exceptions to findings of fact were essential to their review upon appeal, whether they presented rulings upon questions of fact or rulings upon questions of law; and it was not necessary to their proper presentation to the general term that the case on appeal should show affirmatively that it contained all the evidence given upon the trial. Perkins v. Hill, 56 N. Y. 87. In the case cited it was held that when exceptions were taken to findings of fact, and a case made for the purpose of reviewing them, that it would be assumed that all the evidence in support of the findings excepted to was inserted in the case; that, if any evidence was omitted by the party making up the case, it was the duty of the respondent to cause to be inserted by amendment all evidence which he deemed material to sustain the findings excepted to. The new Code made no change in the mode of reviewing rulings upon questions of law. Exceptions must now be taken, or the appellate court will not review such ruling. Sections 992-997. But, as to rulings on questions of fact, exceptions are not, under the present Code, permitted, and hence there is nothing to notify or warn the successful party of his opponent's intention to ask the appellate court to review such finding, unless there is a statement in the case on appeal that it contains all the evidence; and hence it was decided in Porter v. Smith, supra, that in the absence of such a statement the respondent might rely on the assumption that there was no intention to ask a review of rulings on questions of fact. But, as to rulings on questions of law, there is no need to depart from the practice sanctioned in Perkins v. Hill. An exception appearing in the proposed case serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts on him the responsibility of adding by amendment any needed proof upon the particular question, just as a certificate that the case contains all the evidence notifies him of an intention to review the question of error in findings of fact based on the allegation of insufficient proof.

I have been unable to find and authority to the effect that this court would not review a finding of fact excepted to on the ground that there was no evidence to support it, unless the case affirmatively showed that it contained all the evidence, except the dictum to that effect in Cox v. James, 45 N. Y. 557; and this ruling must be deemed to be overruled in Perkins v. Hill. The learned judge who wrote the opinion in Cox v. James concurred in the decision in the case last cited. In the recent case of Bedlow v. Dry-Dock Co., 112 N. Y. 269, 19 N. E. Rep. 800, the chief judge says: ‘Exceptions to alleged findings of fact, when they are unsupported by evidence, * * * present questions of law reviewable in this court.’ In that case there was no certificate or statement to the effect that the case contained all the evidence.

These views lead to the conclusion that a statement that all the evidence given on the trial is contained in the case is not essential to present for review in this court a finding alleged to be without evidence to sustain it. The appellant is therefore correct in his claim that the finding excepted to is properly before the court for review, and we must assume that all the evidence introduced on the trial bearing upon the fact of occupancy has been inserted in the case.

We think the evidence does not justify the conclusion that the premises, at the time of the fire, were occupied, within the meaning and contemplation of the parties to the contract. The property is described in the policy as ‘occupied as a morocco factory.’ Manufacturing business was carried on there until July previous to the fire. The plaintiff lived in Newark, N. J., and he testified that he received rent up to July, and after that no business was carried on there. All the machinery remained on the property; but the building was closed and locked, and was in the hands of Edward Falkner, as agent for the plaintiff, for rent. Falkner had a key, and made frequent visits to the property, sometimes to show it to applicants who came to rent it. John Halpin lived next door, and was a watchman there; but at what time or how often he visited the property does not appear. The plaintiff had not visited the building within a month preceding the fire, which occurred on January 4, 1884. It has been decided that a dwelling-house, to be in a state of occupation, must be the customary abode of human beings; not absolutely and uninterruptedly continuous, but the house must be the place of usual return and habitual stoppage. Herrman v. Insurance Co., 85 N. Y. 162;Cummins v. Insurance Co., 67 N. Y. 260. It was not in the contemplation of the parties to the contract under consideration that the building insured should be the home or place of abode of any person; and the decisions relating to similar provisions in policies upon dwellings are not material, except to show that, while a dwelling-house will not be regarded as occupied unless it is the home or dwelling-place of some person, yet temporary absence, leaving the property for a short period unoccupied, will not be regarded as a breach of the condition, while absence for a fixed, definite period, even with an intention to return and occupy the property, will violate the condition, and render the policy void.

Thus, in Johnson v. Insurance Co., 39 Hun, 410, a temporary absence of eight or ten days before the fire was held not to violate a condition similar to the one we are considering; and in Paine v. Insurance Co., 5 Thomp. & C. 619, it was said: ‘It is not necessary that some person should live in it every moment during the life of a policy, * * * but there must not be a cessation of occupancy for any considerable portion of time.’

In Herrman v. Insurance Co., supra, it was held that a dwelling-house which was the summer residence of the plaintiff was not occupied, within the meaning of the parties, during the winter months, although a farmer living on the plaintiff's farm, or some member of his family, visited the house regularly once a week, and plaintiff and his wife made...