Dissenting opinion by
Wells, J.The plaintiffs effected an insurance on their stock in trade, consisting of not hazardous merchandise, kept in a frame store occupied by them.
In the body of the policy is the following provision :.—
“ And it is agreed and declared, to be the true intent and meaning of the parties hereto, that in case the above-mentioned premises shall at any time after the making, and during the continuance of this insurance, be appropriated, applied, or used to or for the purpose of carrying on, or exercising therein any trade, business, or vocation, denominated hazardous or extra-hazardous, or specified in the memorandum of special rates, in the terms and conditions annexed to this policy, or for the purpose of keeping or storing therein any of the articles, goods, or merchandise, in the same- terms and conditions denominated hazardous or extra-hazardous, or included in the memorandum of special rates, unless herein otherwise specially provided for, or hereafter agreed by this company in writing, and added to or endorsed upon this policy, then, from thenceforth, so long as the same shall be so appropriated, applied, used or occupied, these presents shall cease, and be of no force or effect.”
The word, premises, mentioned in it, must be understood to mean the store containing the goods insured. This conclusion is evident from the language employed. “ Exercising therein any trade, business or vocation,” &c., and “ keeping or storing therein any of the articles, goods or merchandise,” &c.
But the merely retailing, in the store, in the ordinary course of business, some goods of a character hazardous, extra-hazardous or falling within the memorandum of special hazards, would not bring the insured, within the scope of this clause. *281The use prohibited is general in its terms. It is trade, business, or vocation, keeping or storing, and so long as the prohibited appropriation or occupation continues, the force and effect of the policy by the terms of it would cease. Such is the construction, which has been put, upon a similar clause, in a fire policy where the insurance was on the building, in New York, and a different one would probably be a departure from the intention of the parties. 1 Phil, on Ins. 417.
The second condition annexed, to the policy, provides, that “ if after insurance is effected upon any building or goods in this office, either by the original policy, or by the renewal' thereof, the risk shall be increased by any means whatsoever within the control of the assured, or if such buildings or premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect.”
That the provision, before mentioned in the body of the policy, is intended to prohibit a general use alone of the building insured, or when it contains goods, which are insured, is manifested by the more particular and specific terms of the second condition, annexed to the policy. These different provisions do not mean the same thing; they are not identical. And if the storing of a ton of sulphur, in a building, which contained goods insured, as not hazardous, would merely suspend the operation of the policy, until it was removed, some further provision would be required to protect the insurers against the keeping and vending small quantities of the same article. This protection is afforded by the second condition, which does not prohibit the keeping and vending goods deemed more hazardous than those insured, unless the risk is increased. The consequence of such an act, increasing the risk, renders the policy absolutely void. The increase of the risk terminates the insurance, the moment it takes place. And the removal of the cause, which increased the risk, cannot revive the contract.
*282The goods, insured, in the present case, were those not hazardous, but there were kept for sale, in the store, oil, glass, sulphur, candles and matches, which are mentioned in the other classes of hazards, and it is therefore contended, that the policy is void, and that the Court should so determine, as a matter of law.
But it is nowhere said in any of the conditions, that the policy shall be void, for keeping or vending such articles, when not hazardous goods are insured. If by so doing the risk is increased, then the insurance is void. It is the increase of the risk, that determines the result. The quantity and value of what was kept and sold might be so small that no one would say the risk was perceptibly enhanced. Would the keeping and selling an ounce of sulphur, or a quart of oil have that effect ? It is not within the province of the Court to decide, that the mere fact of keeping in the store goods more hazardous, by the classification merely in the conditions, is in reality so. Such inquiry, the plaintiffs have a right to submit to the jury. Hardware is classed among hazardous articles, and if the plaintiffs kept an axe in their store, it would not be the duty of the Court to say, that such an act would create a forfeiture of the policy.
Conditions precedent are those, which must be proved before the action can be sustained. The preliminary measures prescribed, in the conditions, must be taken by the insured. But it is never necessary for him to prove, that he has not kept with the goods insured, others of a class more hazardous. Such proof may be offered in defence, and rebutted, if it can 'be, by counter proof, that, the risk has not been enhanced.
The description of the subject matter insured is undoubtedly a warranty that it is such as it is described to be, and if mntrue in substance, the policy is void. Thus, where insurance was effected on stock in trade, in a two story frame ’house, filled in with brick, and it was not filled in with brick, Ihe policy was held to be void. Fowler v. The Ætna Fire Ins. Co., 6 Cowen, 673.
The thing insured must substantially correspond with the *283description. The insured cannot recover for the loss of a wooden house, upon the insurance of a brick one, nor for one, whose size, use or location differs essentially from the description. This doctrine is sustained by many authorities. Phil, on Ins. 410, et sequentia.
Each case must depend upon its own terms and conditions, for policies are not always alike.
But will it follow, that where goods are insured as not hazardous, consisting of many and various articles, by a policy like that under consideration, and one or more of the articles with them is hazardous, the policy is void ?
It is true, that nothing more is insured, than the not hazardous goods, and they are such as they are represented to be, but some are mingled with them, which are hazardous.
The present risk is on the stock in trade of the plaintiffs, “ consisting of not hazardous merchandise,” &c., and to such goods only will the insurance attach. They neither warrant nor represent, that hazardous merchandise is not in their store.
There is merchandise to which the description can apply, and some to which it cannot, but in the case of a building, no such separation can be made ; it must be viewed as a whole, and must conform to the description.
If policies are to be held void, when merchandise insured is placed with what is more hazardous, than that insured, there are but few, that would be valid under the exercise of a rule so rigid. For in such case, if one, having not hazardous goods insured, should happen to have in his store a pint of oil, a box of glass or an earthen jug, which fall within a higher class of hazards, his policy would be void, although those articles might not serve, in the least degree, to enhance the risk. There is nothing in the policy or the conditions, requiring such severe construction. It is a case manifestly provided for in the second condition before mentioned, and the policy is not avoided unless the risk is increased.
But in the present case, it does not appear, that at the time of effecting the insurance, the articles more hazardous than *284those insured, were then in the store. The case does not disclose at what time they were put there, except that it was before the fire. There is nothing in the policy, that can be construed into a warranty, that the plaintiffs would not carry into their store, during the continuance of the risk, an article denominated hazardous or extra-hazardous. For aught that appears, they were at liberty to do so, and the exercise of it would not operate injuriously upon the insurers, if the risk was not enhanced. It is like the case of the alteration of a building insured, which does not avoid the policy, if the risk is not increased. The Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Grant v. Howard Ins. Co., 5 Hill, 10.
If the insured had no license under the policy, to keep and vend those goods, to which objection is made, the principle that the insurance is not void, unless the risk was increased, and that such question is to be settled by the jury, is sustained by the cases of Curry v. Com. Ins. Co., 10 Pick. 535; Merriam v. Middlesex M. F. Ins. Co., 21 Pick. 162.
The defendants contended, that there were goods kept in the store of a hazardous or extra-hazardous character, or included in the schedule of special risks, and that the right of the plaintiffs to recover on the policy was thereby forfeited.
But the jury were instructed to consider the policy, or the rights of the plaintiffs under it, as not destroyed by these facts.
The Court having withdrawn from the jury what should have been submitted to them for their determination, the verdict, in my opinion, should be set aside, and a new trial granted.