It was not set up in the answer that the application for insurance did not truly state the dimensions of the carding machine building, its number of stories, and its internal divisions and arrangement, or that it omitted to state that there was a basement story to the building or a fireplace within it. The 1st, 2d and 5th points on the motion for a nonsuit, and the 1st and 2d exceptions to the refusals to,charge, were not therefore well taken. The 6th exception to the refusal to charge is unavailable, for the same reason. No claim to have the premium note deducted or set off was set up in the answer
But it was proved that a quantity of flax and tow was in the basement room of the carding machine, at the time of the insurance, and also at the time of the fire; and there was evidence tending to show that the fire was occasioned by sparks falling down the chimney into the fireplace of the basement, in and around which, tow was scattered, and near which was the pile of flax. According to the conditions of the policy, flax belonged to the class of hazardous articles. Nothing was said in the application for insurance about the flax in the basement, though the inquiry was made “ for what purpose occupied ?” It was agreed in the policy, that in case the premises should be used for the purpose of storing or keeping therein any articles denominated hazardous, so long as the same should be so used, the policy should be of no force or effect. The counsel for the defendants requested the court to charge the jury, that if they believed there was flax kept in the lower room of the carding machine building at the time of the fire, the policy would be of no effect. That if the jury believed that there was flax in the lower story of the carding machine building for safe keeping, and not for the purpose of consumption, or in the usual course of business for which the buildings were occupied, the plaintiffs were not entitled to recover. That if the jury believed that the fire originated in the flax or tow, in the lower room of the carding machine buildings, the plaintiffs were not entitled to recover. The judge refused to charge each of these several propositions *129except as stated in Ms charge, to wMch refusals the defendants’ counsel severally excepted. The judge charged the jury, among other things, that if the evidence satisfied them that at the time the fire occurred, the building was appropriated, applied or used for the storage of flax, the policy was of no force and the plaintiffs could not recover. But if the bmlding was not devoted to, or used for that purpose, and the small pile of undressed flax, said to have been in the lower room of the carding machine building, was there but temporarily, and with no intention of having it regularly stored or kept there, then the policy would not be avoided; to the last branch of which charge the defendants’ counsel excepted.
Under the prohibitory clause of the policy, it is well settled that hazardous articles may be introduced into the premises for the purpose of making necessary repairs to the buildings. It was so held in Dobson v. Southby, (1 Mood. & Malk. 90,) where a tar barrel had been taken into a barn for the purpose of repairing the building by tarring it, and a fire was lighted to boil the tar; and in O' Niel v. The Buffalo Fire Ins. Co., (3 Comst. R. 122,) it appeared that the plaintiff had brought into the house, paints, oils and turpentine, for the purpose of painting the inside, and kept them there while the work was going on. It was adjudged that the act complained of was not a storing, within the language of that policy, and that the articles, being introduced for a temporary purpose, not prohibited by the policy, the risk attending ordinary repairs being intended to be covered by the insurance, the plaintiff was permitted to recover.
In Langdon v. The New-York Eq. Ins. Co., (1 Hall, 226, and 6 Wend. 623,) where a policy contained a clause prohibit; ing the use of a building for storing therein goods denominated in the memorandum annexed to the policy as hazardous, the keeping of such goods as oil or spirituous liquors, by a grocer, in ordinary quantities, for his ordinary retail, was decided not to be, under the circumstances, a storing of them, within the policy.
The word storing, in these cases, was held to mean a keeping for safe custody to be delivered in the same condition as when *130received; where the safe keeping is the principal object of deposit, and not a keeping for the purpose of consumption or sale in the usual course of business. This is the definition established in O’Niel v. The Buffalo Fire Ins. Co., (3 Comst. 127.)
In the present case an additional word has been introduced into the policy, which forbids the keeping as well as the storing of hazardous goods. If the same language had been used in the policy on which the suit was brought, in Langdon v. The New-York Eq. Ins. Co., the plaintiff could not have recovered.
But the peculiar feature that distinguishes the present case from all those relied on by the plaintiffs’ counsel is, that the hazardous articles were not introduced, either for the purpose of repairs or in the usual course of business for which the building was occupied. The keeping of the articles there was not permitted, but it was expressly prohibited by the policy. To avoid the policy it is not necessary to show that the building » was “ devoted to” or “ used for” the purpose of storing flax, as was said by the judge in his charge. If it is used for the purpose of keeping flax, it is a forfeiture of the policy. Nor is it necessary to show, on the part of the defense, that the whole building was “ devoted to” such a purpose. If flax was permitted to be kept there, then the building was used for that purpose. The proof shows that flax had been dressed in the basement room of the carding machine within ten days previous to the fire; and although the flax machine had been laid aside, and some of the flax removed, a pile of unbroken flax, two and a half or three feet high and three feet wide, was left in the corner of the room, and tow was scattered about the room. I think it was erroneous to charge “ that if the flax was there but temporarily, and with no intention of having it regularly stored or kept there, then the policy would not be avoided.” Hazardous articles can only be introduced temporarily, when it is for a purpose not prohibited by the policy, as'for repairs, &c. Such is the rule laid down in O’Niel v. The Buffalo Fire Ins. Co., (3 Comst. 122.) It goes no further. It does not permit the introduction of hazardous articles even temporarily, if it be for a purpose prohibited by the policy. Such a construction seems *131to me a plain violation of the contract, and of the intention of the parties. If hazardous articles may be introduced temporarily, when forbidden by the policy, how long may they be permitted to remain ? Has the law fixed the limit within which a contract may be so violated with impunity? A brief time of exposure to such hazard, might be long enough to fire the buildings, as- is alleged in this case.
[Albany General Term, December 6, 1852.Parker, Wright and Harris, Justices.]
Nor can the intention not to have the flax regularly stored or kept there, justify the act complained of. It is not a question of intent, or of regularity of storing or keeping. If the hazardous articles were permitted to be kept in the building, it was a breach of the policy. The parties contracted that flax should not be kept on the premises at all, with the exceptions which have been heretofore recognized in the legal construction of policies, viz. for the purpose of repairs or in the usual course of business for which the building was occupied. The proof shows it was kept there, and the evidence tends strongly to prove that the building was burned in consequence.
I think the learned judge erred in his refusal to charge, as well as in the last paragraph of his charge above quoted, and that the judgment rendered at the circuit should be reversed and a new trial awarded.
Judgment affirmed.