On Application for Rehearing.
Leonard, LIf the issues of fraud and concealment growing out of the presence of lime on the premises of the plaintiff had been presented to us in such a manner that we could have felt at liberty to examine them, we should have agreed with the judge a quo that the policy would not have been vitiated thereby, because lime was an article necessary to the carrying on of plaintiff's business, and that implied permission was therefore given him to keep it‘in and about his premises. Hayward vs. N. Y. Insurance Co., 19 Abbott, 116.
The failure on the part of the association to object to the itemized statement of loss that was presented to them or to answer the letters of plaintiff’s attorney had an appearance of indifference, the tendency of which would be to put them in the light of acquiescing in a claim which,, if they had thought it fraudulent or -unfounded, they would naturally be supposed to have repudiated at the time. We do not desire that the language used in our opinion should be construed to convey any harsher import than this.
*921Upon a re-examination of the case, under .the view of the law and the rules of practice laid down in our opinion (and to which we still adhere), we fail to find that the conclusion reached by us was erroneous. The itemized statement of loss made up immediately after the Are, sworn -to by the plaintiff and certified to be correct by Mr. Andrew Hero, notary public, from his personal knowledge, and which we have said was in no manner objected to by the association at the time, exceeds, without including the item of damage to the building, the amount for which judgment was rendered in the court below.
Rehearing refused.