Young vs. The Washington County Mutual Insurance Company, 14 Barb. 545

By the Court, Willard, P. J. The case of Stebbins v. The Globe Ins. Co., (2 Hall, 632,) relied on by the defendants, is an authority the other way. In that case the representation was that certain ground contiguous to the building insured was vacant. The defendants offered to show that during the running of the policy, the insured erected other buildings on this vacant ground. This evidence was excluded by Oakley, justice, as immaterial. There was no warranty that the insured should not build on the vacant ground, nor was there in this case that he should not rebuild.

Ho doubt in both cases, the erecting of new buildings increased the risk; but it was still a lawful and not a fraudulent act. Oakley said he excluded the evidence of erecting buildings on the vacant ground as immaterial, unless the defendants could show that the fire originated in the buildings thus erected, or was communicated by them to the one burnt. The defendants’ counsel infers from this, that if the burning of the new building occasioned the burning of the one insured, the person insured cannot recover. But the judge does not say so.

The erection of a building on a vacant lot, when there is no warranty to the contrary, cannot in the abstract, injure the defendants. The material point is whether the erection occasioned the loss. Grant that in the latter case, the insured cannot recover, still it does not interfere with the plaintiff’s right in this case. Here, there was a store standing when the policy was issued, and if it had remained, it would have probably occasioned the loss. It would have been as likely to be burnt as the new one. The insurers expected that a store would remain there during the running of the policy.

They inserted no clause against rebuilding it, in case it was burnt. The building was a lawful act. The right of the insured to recover can only be defeated by his having done some wrongful act, prejudicial to the insurer. He had a right to rebuild. If the fire was occasioned by a want of ordinary care on the part of the insured, in rebuilding, then the plaintiff ought not to have recovered. But the judge has found there was no negligence, and that reasonable care was used. And that the building insured would not have been burnt but for the force and direction of the wind.

There is no principle stated by Judge Oakley in Stebbins v. The Globe Ins. Co. in conflict with the ruling at the circuit. . [Schenectady General Term, January 3, 1853. Willard, Cady and Handy, Justices,] The judgment must be affirmed.