This is an action upon a fire policy and the defense is a breach of certain warranties contained in. the same.
The insurance was upon a dwelling, and the fire which caused the loss took place about three' months after the last tenant permanently moved out.
It is conceded there Was no furniture or other material ■except á blanket in the premises insured during all that time. Among the provisions contained in the policy Was this, one: “ That if a building herein described, whether intended for ■ •occupancy by owner or tenant, .be or'become vacant or unocpied and so remain for ten .days the policy shall be void ' unless provided, otherwise by .agreement indorsed hereon or added hereto.” "
We think the trial justice should have dismissed the complaint at the close of plaintiff’s case and also at the' close of the entire case.
The testimony of Mary A- Stapleton and James D. Du Bois Was insufficient and did not relieve the plaintiffs ' from the effect of the condition of. the policy, of insurance.
Earl, J. in Herrman v. Merchants' Ins. Co., 81 N. Y. 184, at page 188, says: “ A dwelling ■ house is .unoccupied *643when no one lives therein, but .is not then necessarily vacant. * * * To avoid the policy the premises must not only be unoccupied but also vacant.
“ Force should be given to both words. This is not a casual ■contract drawn in haste, in which language has been carelessly used; but it is a form of contract used by the defendant in its business, probably adopted with great deliberation, every word of which, as we may suppose, has been carefully weighed.”
These premises were both unoccupied and vacant. 85 FT. Y. 162, 168, 169. Plaintiff made a. breach of a binding, condition and must abide the unfortunate consequences- .This being material error, judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
Yaw Wyck, Ch. J., and Schuohmaw, J., concur.
Judgment reversed and new trial granted,, with costs to appellant to abide event.