Smith v. Mechanics' & Traders' Fire Insurance , 29 How. Pr. 384 ( 1865 )

Action brought on a policy of insurance. Opinion per Davis, J. •

Where the policy of insurance' describes the property insured as being “ a two story framed building, used for winding and coloring yarn, and for the storage of spun yarn,” it does not thereby warrant that such building is to continue to be thus used. Such statement in the policy is a warrant as to the use of the premises in presentí only, and is not to be deemed a continuing warranty as to the future use of such building.

The insurer wishing to protect himself by a continuing warranty, as to the future use of such building,-must do so ■ by language plainly importing such an intent.

Where on account of the character of the use of the property insured, special rates are required to be paid, and the policy contains no warranty of continued use, a change of such use, keeping within the same character of risk, calling for the same special rates, will not avoid the policy when the risk is not thereby increased. In such case it is for the jury to find the fact whether the risk has been increased by such change..

Judgment reversed, and new trial ordered.