#### MITCHELL v. NIAGARA FIRE INS. CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Insurance—Misrepresentations as to Character oe Building.

Where a building formerly used as a factory, and insured as such, is afterwards occupied throughout as a dwelling house, it is not a misrepresentation, in an application for insurance thereon at dwelling-house rates, to state that the building is a dwelling house.

Appeal from circuit court, Orange county.

Action by James F. Mitchell against the Niagara Fire Insurance Company on a fire insurance policy. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

De Forest Bros., for appellant.

Taylor & Gardner, for respondent. •

PRATT, J.

This is an appeal from a judgment rendered in favor of plaintiff against defendant,'upon a verdict directed by the court, for the sum of $1,020, at the Orange county circuit, in June, 1895, and from an order denying defendant’s motion for a new trial. The action was brought to recover upon a policy insuring plaintiff’s dwell*205ing in Newburgh, issued by defendant in December, 1892, to plaintiff, for the sum of $1,000, payable to plaintiff’s assignor as mortgagee. Plaintiff’s assignment appears in the case. While the answer set up several defenses, most of which were abandoned on the trial, or no evidence offered to prove the same. The policy being offered in evidence, service of proofs of loss being admitted, Are, value of property, and assignment to plaintiff being proved, plaintiff rested. The only testimony offered by defendant was that of its agent, Robinson, who issued the policy. He testified that it was stated to him, on application for the policy, that the building was a dwelling. Nothing else was said. The uncontradicted proof shows it was a dwelling, having been formerly a factory. The rooms not lived in by the family were used for washing, drying clothes, putting in wood and coal, etc., so that the whole house was occupied. Robinson also testified that a dwelling that has a storeroom in it of the size of this building should be insured at the rate of $10 per thousand. No evidence was offered that the stories of a house make any difference as. to rates, or that any statement was made as to stories of dwelling in question. The rate charged was for a dwelling house. Defendant then rested. Both parties moved for the direction of a verdict, and the court directed a verdict for the plaintiff. The defendant claims upon the facts proved that there was concealment or misrepresentation by the agent of the insured which avoided the policy, in which the risk is described as a dwelling house. The proof shows it was a dwelling house, and used as such, and nothing else. It was, therefore, no misrepresentation to call it a dwelling'house, and no concealment was practiced by not saying that every room in the house was not continually used as a living room all the time it was occupied by the assured. In fact it was all occupied within the meaning of the law. The attic was used to dry clothes, part was used as a laundry, and other parts to store furniture not in continual use. It is plain no fraud was practiced or intended by the insured, and no misrepresentation made. There seems to be no alternative to an affirmance of the judgment, as there is no exception by defendant in the record. The defendant took no exception to the direction by the court to the jury to find a verdict for the plaintiff, nor has any order been entered denying any motion for a new trial.

Judgment affirmed, with costs.

DYKMAN, J.

This is an appeal by the defendant from a judgment and order denying a motion for a new trial upon the minutes, of the court. The action was based upon a policy of fire insurance, and upon the trial at the circuit a verdict was directed in favor of the plaintiff against the defendant for $1,020. For a defense to the action the defendant set up misrepresentation and concealment, which was based upon the following facts: Prior to 1889 the building was used as a carpet factory, and insured as such at a premium of $15 a year, and in that year the policy was renewed at the same-rates. Thereafter the agent of the plaintiff returned the policy to-the company, and stated that the building had been changed from a factory into a dwelling house, and that the factory rates no longer *206applied. From that statement a new policy was issued upon dwelling-house rates. The statement of the agent was true. The building never was used as a factory subsequent to the issuance of the last policy, and it was occupied as a dwelling. There was no misrepresentation, and no concealment of any fact. At the close of the testimony each party moved for the direction of a verdict, and so it was assumed by both that there was no question of fact for the jury, and there was none. The facts are undisputed. While principle and authority condemn a policy procured by false representation or fraudulent concealment, the rule has no application to this case, because there was no proof of either therein.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

BROWN, P. J., concurs.