Halpin v. Phœnix Insurance , 4 N.Y. St. Rep. 867 ( 1886 )

Dykman, J.

This action was brought to compel the surrender of a bond and mortgage, and its decision depended upon the determination of a question respecting the validity and force of a policy of insurance against fire issued by the defendant upon the premises covered by the mortgage.

It was the claim of the defendant that the premises became vacant and unoccupied during the period for Avhich the policy was issued, and that by virtue of a condition in the policy against such vacancy, the policy went out of force and became ineffectual and died.

The trial judge found upon evidence sufficient to sustain his finding that the premises were not vacant or unoccupied of the time of the fire, and gave judgment to the plaintiff awarding him the relief sought by his complaint.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs.