When the policy was issued the house was not “ occupied by tenant.” That fact was known to Tomlin, who solicited the policy. He may be deemed the agent of the assured under the provision in the policy, to wit: “ It is a part of this contract that any person other than the assured who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.” He solicited the policy, became fully aware of the fact that the dwelling was unoccupied; that the assured knew it, and still wished it insured, and knew that some companies would not carry a risk on it, and that others would; and Tomlin, knowing these facts, went to the office of Smith & Elwood, agents for the defendant, and saw a clerk, stated the facts of its non-occupation, applied for a policy, which was written by the clerk, took and delivered the policy and secured the piemium, paid it over to Smith & Elwood, who paid it over to the defendant, and the defendant received it and put it away in its coffers, and for no other consideration than the policy so issued. The clerk of Smith & Elwood was acting for them, and was authorized by them to do many things apparently which they could do; and , according to Bodine v. Ex. Fire Ins. Co. (51 N. Y., 117), his act was the act of Smith & Elwood, the agents of the company. It may be inferred from the evidence that, through the acts and statements of the clerk, Smith & Elwood had full knowledge of the non-occupation of the premises at the time they issued the policy for the defendant.
The case of Gates v. Penn. Insurance Co. (17 N. Y. S. C. R., 490), was very similar in principle to this one, and the General Term of this department held there could be a recovery. The principle laid down by Mullin, P. J., in that case, would uphold a recovery here. The learned counsel for respondent cites Alex*459ander v. Germania Fire Insurance Co., decided in February, 1876, by the Court of Appeals, and reported 66 N. Y., 464. In that case there was a written application taken by one Brewster, who was the party who procured the insurance, and under a similar clause as to being the agent of the assured. It was held that knowledge by him of the fact that the house was vacant was not notice to the company, and that knowledge of such fact by such a person did not prevent the company from insisting upon the breach of the warranty. A similar doctrine was laid down in Rohrbach v. The Germania Fire Insurance Co. (62 N. Y. ., 47).
These cases are commented upon by Folger, J., in Van Schoick v. Niagara Fire Insurance Co. (68 N. Y., 434), and explained. He says, 11 that the policy was delivered and the premium received, with full purpose of making a valid and obligatory contract, is evidence that, through neglect or forgetfulness, one of the forms was not observed, or that it was waived by the parties.” Also, he says: “ In- the case in hand, there is a consideration in the • premium paid which would not have been done with an understanding that the condition should remain and be enforced, thus making the payment futile. In the purview of some of the cases, there is also an estoppel.” The learned judge in that case reached, the conclusion that Lewis was the agent of the company, and that Ills knowledge that the buildings were on leased lands was equivalent to the knowledge thereof by the company; or, in other words, that through his knowledge of the fact the company had notice. He then adds: “ It is difficult to make all the cases upon this subject harmonize; but by the force of authority we are constrained to hold that such a condition as this may be waived by the insurer, by express words to that effect, or by acts done under such circumstances as would otherwise impute a fraudident purpose, and as will estop him from setting up the condition against the insured.” The learned judge thus reaches a conclusion that the company, under the circumstances disclosed then, could not successfully defend. This court is, therefore, justified in concluding, in this case, that there was an estoppel or waiver by the defendant at the time of issuing the policy.
These views lead to the conclusion that the learned judge at *460the Circuit improperly granted the motion for a nonsuit, and that a new trial should be granted, with costs to abide the event.