Jones v. . Fireman's Fund Insurance Co. , 51 N.Y. 318 ( 1873 )

Gray, C.

The contract of insurance was against loss by fife on the plaintiff’s stock of fire-works and merchandise, hazardous and extra hazardous. The only description of fireworks to be found in any class of hazards annexed to the policy denominated hazardous or extra hazardous is firecrackers. There is mentioned, in a separate class of hazards denominated specially hazardous, fire-works, but no mention is made of the kind or description; and inasmuch as there was, at the time the contract of insurance was made, an ordinance of the common council of the city of Hew York in force prohibiting “ works of brilliant-colored fires ” from being stored within the city Emits, and as fire-worlcs are of various kinds and in different degrees dangerous, we are not to presume that the agreement to insure the plaintiff against loss was intended to cover an article so specially hazardous that he had no right to store it; but that fire-works, in the sense in which the term was used, had reference- to such fire-worlcs as were in the prohibition excepted or might by permission be kept for retailing. The prohibited article was kept in the defendant’s store, surrounded by other merchandise covered by the policy, and the evidence at least tended to prove that the risk was thereby increased; and hence, if upon the whole case the defendant was. not entitled to a nonsuit, he was enti tied to • have the question whether the risk was not thereby increased submitted to the jury.

The order for a new trial was properly granted and should be affirmed, and judgment absolute rendered against plaintiff, with costs.

All concur.

Order affirmed and judgment accordingly.