* The opinion in this case was mislaid, and thus it did not appear in its order. *Page 465 The three points made by the counsel for the defendant, on the motion to dismiss the complaint, embrace, in substance, but one proposition, viz.: That the plaintiff, in his contract with the defendant, warranted that the building insured was occupied as a dwelling, and that the breach of this warranty avoided the policy.
By the terms of the policy the defendant insured the plaintiff against loss, etc., "on his two-story and extension frame, shingle-roof building, occupied as dwelling, situate," etc.
This was clearly a warranty that the building was, at the time of the insurance, occupied as a dwelling. The description and location of the building were fully set forth. The statement that it was occupied as a dwelling was not necessary for its identification, and could have been inserted for no other purpose than as a statement of a fact relating to the risk. The case ofWall v. The East River Mutual Insurance Company (7 N.Y., 370) is in point upon this question. That case adopts *Page 467 the definition of a warranty contained in 13 Connecticut, 544, viz.: That "any statement or description on the face of the policy, which relates to the risk, is a warranty," and holds that the same rule which prevails as to marine policies is applicable to fire policies. It was there decided that where a policy covering a rope-maker's stock, described it as contained in a brick building, with tin roof, occupied as a storehouse, and about forty-two feet distant from the rope-walk, etc., the statement that the building was occupied as a storehouse was a warranty.
That case was followed in Parmelee v. Hoffman Fire InsuranceCompany (54 N.Y., 193), where a building was described in the policy as being occupied by the assured, and it was held that this was a warranty. The present case clearly shows that the statement as to the occupancy of the building related to the risk, for the policy provides that if the premises become vacant and unoccupied the policy shall become void.
This view of the case renders it unnecessary to determine whether the statement as to occupation contained in the application was a warranty. There would be a difficulty in so holding, for the reason that it does not appear in the case that the application was referred to in the policy or made part of it. (See Owens v. Holland Purchase Co., 56 N.Y., 565.)
The plaintiff claims that the knowledge of Brewster, the agent who procured the insurance, that the house was unoccupied, destroys the effect of this warranty. Assuming that Brewster was the agent of the company for the purpose of taking the application for the policy, his knowledge of the falsity of a warranty in terms contained in the policy could hardly affect the validity of the warranty. (Chase v. Hamilton Ins. Co.,20 N Y, 52, 56.) Such a case would not fall within the principle ofRowley v. The Empire Insurance Company (36 N.Y., 550).
But the policy now in question contains an express agreement, that any person other than the assured who may have procured the insurance to be taken by the company, shall be *Page 468 deemed to be the agent of the assured, and not of the company under any circumstances whatever, or in any transaction relating to the insurance. In Rohrbach v. The Germania InsuranceCompany (62 N.Y., 47), this court decided that this clause was operative and precluded the assured from claiming that the company was bound by the knowledge of a similar agent through whom a policy had been procured.
It is conceded that the house was vacant and unoccupied at the time of effecting the insurance, and so continued up to the time of the fire. This was a breach of the warranty, which, according to well-settled rules of law, avoided the policy.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur, except CHURCH, Ch. J., and MILLER, J., not voting.
Judgment reversed.