Mack v. Rochester German Ins. Co.
| Decision Date | 04 October 1887 |
| Parties | MACK v. ROCHESTER GERMAN INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from general term supreme court, fourth department.
Geo. F. Yeoman, for appellant.
Wm. H. Kenyon, for respondent.
The policy of insurance upon which this action was brought contained the following provisions:‘The working of carpenters, roofers, gas-fitters, plumbers, and other mechanics in building, altering, or repairing any building or buildings covered by this policy will cause a forfeiture of all claim under this policy, without the written consent of this company indorsed hereon.’ It was also provided that the policy should be void, ‘if the risk be increased by any means within the control of the assured.’ At the circuit a verdict was directed in favor of the defendant, upon the ground that the loss occurred during a violation of the conditions of the policy by the plaintiff, and while the building was being occupied by carpenters in making alterations therein without defendant's written consent. The general term was of the opinion that the evidence presented a question of fact for the jury, and that the trial court erred in directing a verdict.
We differ with the general term. There was no material conflict in the evidence, and the following facts were undisputed: The policy in question was issued January 29, 1881, and the fire occasioning the destruction of the building took place on October 2d thereafter. At the time of the insurance, the building was occupied as a grocery store by a tenant of the plaintiff, and continued to be so occupied until about October 1st. On September 29, 1881, the plaintiff executed a lease of the building to other tenants, who contemplated using it for the purpose of carrying on the business of drying fruit therein, and the lease provided that they should have the privilege of putting the machinery needed for their business into the building. This business required some alterations in the structure of the building, and the introduction therein of a furnace, and wooden shafts or boxes running from the cellar to the roof, and constituting the driers in which fruit was intended to be cured by heat. These driers required in their formation the cutting of large holes through each floor of the building and its roof, five feet square, and the removal of the timber boards, scantling, and plastering constituting the flooring and roofing, and the rebracing of the joists or sleepers of the several floors. They also required the introduction of wooden boxes or shafts running from the cellar to six feet above the roof, divided into compartments several feet apart for holding the fruit while it was in process of being dried. These boxes were made of boards securely fastened to pine scantlings at each corner of the box, and forming a well or shaft from cellar to roof. From about October 1st to the time of the fire, carpenters were engaged in making these changes in the building, as well as making tables and other conveniences for...
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