Opinion
November 3, 1911.
Alexander Rosenthal, for the appellant.
Joseph T. Magee, for the respondent.
Plaintiff appeals from a determination of the Appellate Term reversing a judgment of the Municipal Court, and ordering a new trial.
The action is upon a policy of burglary insurance, and the sole question presented is whether or not it constituted a change in "the conditions or circumstances of the risk" to permit workmen to be employed in painting plaintiff's house and relaying floors therein without first obtaining the written consent of the defendant. There can be, we think, but one answer to this proposition, and that is the negative. If it appeared that plaintiff had wholly turned the house over to workmen a different question might be presented, but that was not the case made by the evidence. The plaintiff's tried servants remained in the house, and plaintiff himself or some member of his family slept in the house, except on Saturday and Sunday nights, when they were in the country.
To apply the rule contended for by defendant would amount to holding that in the case of burglary insurance upon a dwelling house, the policy would be avoided whenever any workman, such as a plumber or gasfitter, was called in to make repairs. We cannot accede to any such stringent rule.
The determination of the Appellate Term must be reversed, and the judgment of the Municipal Court affirmed, with costs to the appellant in this court and the Appellate Term.
INGRAHAM, P.J., LAUGHLIN, MILLER and DOWLING, JJ., concurred.
Determination reversed and judgment of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.