(dissenting): I am unable to concur in the opinion of Mr. Justice Ingraham. The building insured at the time it was consumed by fire was, I think, both vacant and unoccupied, which, under a provision of the policy, prevented a recovery. This provision is as follows: “ This 'entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten ■days.” The policy was issued on the 21st of May, 1901, and covered a two-story frame dwelling, which, at that time, was occupied by a tenant who shortly thereafter removed therefrom, and from that time until the fire occurred — about two o’clock on the morning of the 5th of July, 1901 — there was nothing in the building ■except the body of a carriage stored on the ground floor and a couch and one chair in one of the rooms on the second floor. This •couch and chair were put into this room by plaintiff’s husband after the tenant vacated the building, and this is what is termed in the prevailing opinion as the plaintiff’s husband “ moved into.” After the tenant vacated plaintiff posted conspicuously on the building, or some part of it, the words “to let,” and a day or two prior to the fire the building had been relet, but the tenant had not “ moved in.” The only pretense that the building was occupied was the fact that the plaintiff’s husband slept in it several nights each week, just how many he was unable to say, as is clearly evidenced by the following question which was put to him on cross-examination and his -answer to it: “ Q. Isn’t it a fact that you went there and slept a night or so, but you do not remember just how many nights you •did sleep there ? A. That is right.’5 He did not sleep in the building the night the fire occurred; on the contrary, he slept in the house *284which stood on the ad joining lot, occupied by himself and wife. Nor did he make any inspection nf the building the night it burned, as stated in the prevailing opinion. He testified: “ And the last night I slept there was July 3d, 1901. On that night I slept in the house. Between the 4th and 5th there happened to be a fire in that little house * * * which was the house on which my wife had this policy of insurance. About eleven o’clock I went all around the house where I am living now and I saw that everything was all right and then -* * * I went to bed ' * *
The appellant contends that the building was • both vacant and unoccupied, and I am of the opinion that the contention is correct. The words “ vacant ” and “ unoccupied ” in the sense in which they are here used are not synonymous. (Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162.) In determining the sense of • these words, regard, of course, must be had- to the purpose for which the' building was adapted. It was a dwelling house, and it was vacant unless it contained such articles of furniture as are usually to be found in a dwelling house. It did not contain such articles. (Martin v. Rochester German Ins. Co., 86 Hun, 35; Litch v. North British & Mercantile Ins. Co., 136 Mass. 491.) It cannot be that the body óf a wagon upon the ground floor,.and a couch and a chair in one of the rooms on an upper floor, are sufficient to prevent the building being vacant, if effect is to be given to this word in the sense in which it is used in the policy. x
It was also unoccupied. ■ “ For a dwelling house to be in a state of. occupation,” says Chief Judge Folgeb in Herrman v. Adriatic Fire Ins. Co. (supra), “ there must be in it the presence of human beings1 as at their customary place of abode, not absolutely and uninterruptedly continuous, but that’ must be the place of usual return and. habitual stoppage.” And in the' language of Judge Earl in Herrman v. Merchants' Ins. Co. (81 N. Y. 184), “ A dwelling house is unoccupied when no one lives therein.” ' It is not sufficient, therefore, that there were in it a few articles of furniture or that plaintiff’s husband occasionally slept there.. He neither lived in this building nor was it his customary place of abode. (Couch v. Farmers' Fire Ins. Co., 64 App. Div. 367; Barry v. Prescott Ins. Co., 35 Hun, 601; Huber v. Manchester Fire Assurance Co., 92 id. 223; Poor v. Humboldt Ins. Co., 125 Mass. 274; *285Agricultural Ins. Co. v. Hamilton, 82 Md. 88; 13 Am. & Eng. Ency. of Law [2d ed.], 274, and cases cited.) If effect be given to these authorities, then the building had not been occupied for more than ten days, which prevented a recovery.
I think the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.