(a) Decided in October, 1851; but an error occurred in entering the judgment of the court, which was corrected in June, 1853. *Page 54 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 55
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 56 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 58 In this case, the terms of the inquiry respecting buildings within ten rods, are identical with those in the cases ofBurritt v. The Saratoga Co. Mutual Fire Ins. Co., (5 Hill, 188,) and Jennings v. The Chenango Co. Mutual Ins. Co., (2Denio, 75,) and the answer is deficient in the same particulars. The decisions in those cases are, consequently, direct authorities for this. They were reviewed at length by Jones, J., in delivering the opinion of this court, in the case of Gates v. The Madison Co. Mutual Ins. Co. (2 Comst. 48, 51,) approved of, and the distinction clearly pointed out between them and the case then under consideration. The subject is exhausted in the opinion of that learned judge, and I need only say that my opinion on this branch of the case is placed on the ground that the respondent, in his application, concealed a fact which the appellants had a right to know, viz.: the number and situation of other buildings within ten rods of the building containing the goods insured; and for that reason, the policy was invalid, it being a part of the contract between the parties, that any "concealment in the application" should render the insurance void.
There is another and important branch of this case on which a serious question arises, and that is, whether there is any difference between real and personal property in applying the principle above stated. This question acquires seriousness from the decision of the supreme court in the case of Trench andanother v. The Chenango Co. Mutual Ins. Co. (7 Hill, 122,) where the supreme court have recognized and adopted such distinction. The contract between the insurer and assured is not set forth fully in that case; parts of it, however, are presented, and probably it was substantially like the contract in the present case. But whether so or not, the agreement between the parties now before the court is fully set forth, and *Page 60 the sole inquiry is, did they intend that the provisions of the policy, relative to other buildings within ten rods, should not apply to their contract. I say, provisions of the policy, for by its terms, the act of incorporation and the by-laws of the appellants are a part of it; and by the 12th section of the by-laws, and one of the conditions, the application is an essential part, indeed, the very basis of the agreement.
By the 11th section of the by-laws, the appellants engage to insure goods at the same rates with the buildings in which they are contained; hence the character and situation of the building is the prominent consideration in every contract of insurance, and is just as important when the policy covers personal property in a building, as when it covers the building itself. The building, consequently, is the main object presented in all the preliminary propositions, but no distinction is any where indicated in respect to the character and situation of the building, between insurance on personal and real property.
From an examination of the contract in general, I am satisfied, that the parties have made no such distinction. But when the application itself is examined, and it is there found that the respondent, having in contemplation an insurance on his personal property, recognized the materiality of the inquiry concerning the situation of the building in reference to others within ten rods, undertook to answer, and did answer it in part, and the appellants received the application with this answer, referred to and adopted it in their policy, every doubt is removed in respect to the true construction of this contract; and if the contract in the case of Trench v. The Chenango Co. Mutual Ins. Co. was like this, I am constrained to say, that, in my opinion, the supreme court erred in their construction of it.
Judgment reversed. *Page 61