(concurring.) So far as the stipulation in the policy relates to change of title, I think it is to be construed as an actual change of title or interest, and the “condition applies only to a legal transfer which divests the insured of title to” the subject insured, (Browning v. Insurance Co., 71 N. Y. 509;) and I concur in that part of the opinion of Martin, J., which discusses the effect of a levy upon the personal property as regards the title thereto.
2. I am not satisfied by the proof that there was an actual change of “possession of the subject of insurance.” It may be argued that the sheriff in virtue of the levy had constructive possession, but the evidence fails to establish that the actual “possession of the subject of the insurance” had passed out of the insured. The lien of the sheriff supported by the execution was only about $1,050, while the store in which the goods were situated contained about $11,000 in value of goods. Although the sheriff had acquired the key or keys, it is not too much to assume that he acquired them for the purpose of returning to the store and removing such goods from the store, or producing an actual, physical change of possession of such goods as he might deem necessary to satisfy the requirements of the execution. We think it cannot be said, as a matter of law, that there was an actual physical change of possession of the subject-matter of the insurance. If, by virtue of the “legal process or judgment, or voluntary act of the insured, or otherwise,” an actual change of the possession, or physical removal of the goods from the store in which they were at the time they were insured, as well as on the morning of the 4th of April, had been shown by the evidence, another question would have been presented. I concur in the conclusion of the opinion <>f Martin, J.