Opinion
July, 1930.
Order as resettled and judgment reversed upon the law and the facts, with costs, and verdict reinstated, with costs. In our opinion plaintiff proved facts sufficient to constitute a cause of action. Lazansky, P.J., Carswell and Tompkins, JJ., concur; Rich and Hagarty, JJ., dissent upon the following ground: The plaintiff breached the promissory warranties in the policy of insurance, which provided that plaintiff would employ two private watchmen within the premises at all times when the premises were not regularly open for business, who would make hourly rounds and record their patrol upon the watchman's clock. This, within the meaning of Smith v. Northwestern F. M. Ins. Co. ( 246 N.Y. 349), invalidated the policy.