Where a fire policy refers to a survey and declares that it shall constitute a part of the policy, the statements therein contained in regard to the situation, use and care of the property are to be regarded and construed as warranties. (LeRoy v. The Market Ins. Co., 39 N.Y., 91; Same Case,45 N.Y., 80; Ripley v. The Ætna Ins. Co., *Page 48 30 N.Y., 136.) To produce this effect, the policy must not only refer to the survey, but it must be made a part of it, otherwise the statements contained therein will be construed as representations and not as warranties. (The Farmers' Ins. and Loan Co. v.Snyder, 16 Wend., 481.) Failure to comply with a warranty will bar a recovery in case of loss, whether the loss was caused by such failure or not. (Cases, supra.) In the present case the survey is made part of the policy. In the survey the following inquiry is made: "Watchman. Is one kept in the mill or on the premises during the night and at all times when the mill is not in operation or when the workmen are not present? Ans. Yes." This statement was promissory, but the rights and duties of the parties were the same under it as though it had been affirmative. (Ripley v. The Ætna Ins. Co, supra.) The proof was, that upon the day previous to the destruction of the property by fire, the sheriff levied an execution against the assured upon the personal property in the mill, and excluded their employes therefrom, took the keys and locked up the building. The counsel for the appellant insists that this act of the sheriff, being an act that it was his legal duty to perform, must be regarded as the act of the law, and cites authorities showing that when performance of a contract becomes impossible by the act of God or the law, performance will be excused. The answer to this, in the present case, is that it was the default of the assured in not paying the judgment that caused the issuing and levy of the execution. The levy does not, therefore, excuse it from the obligation to perform the warranty. The counsel further insists, that as the deputy sheriff and one of the trustees of the assured remained in the office of the company, a building about two rods from the mill, during the night and until the discovery of the fire, they should be regarded as watchmen within the meaning of the policy. But the testimony failed to show that they were such, or even so regarded themselves. That shows that they looked through the building twice in the evening, the last time about eleven o'clock, and then went into the office, laid down and dozed until about *Page 49 four o'clock, when the deputy sheriff turned over and discovered the mill in flames, the fire being so extensive as to render all attempts to save the building and property hopeless. It is clear that these persons never undertook with the assured to act as watchmen, and consequently incurred no liability to it for negligence in the performance of the duties of such employment. In case of a recovery in the action, the defendant would have no right by subrogation to any remedy against them upon that ground. This shows that they were not watchmen within the meaning of the warranty. The evidence shows a pretty clear case of negligence in the performance, had they undertaken that duty. The sheriff remained to protect himself from liability incurred by the levy. This made him liable in case the property was stolen, but not for its destruction by fire. What Comstock staid for, the case does not disclose. It does appear that he did not remain as watchman. That is sufficient in this case.
It appearing that there was a breach of the warranty to keep a watchman, the nonsuit was properly granted, and the judgment must be affirmed.
All concur.
Judgment affirmed.