Pindar v. the Kings County Ins. Co.

Grover, J.

The description of the goods insured by the policy was such goods as are usually kept in country stores. To determine what particular goods were .covered by the policy, it was necessary to ascertain what goods were usually kept in country stores. This rendered proof of what was so kept necessary and competent. The objection to this evidence was therefore properly overruled. The evidence showed that spirits of turpentine and gunpowder were usually kept in country stores. These articles were thus brought within the description of the policy and covered by it. It was wholly immaterial whether, when stocks of country stores were insured, it was usual to make some special agreement in relation to these articles. The inquiry was, simply, whether they were usually kept in country stores, not how they were insured when so kept, if at all. Aided by the proof given, the policy in question must be construed as insuring spirits of turpentine and gunpowder, together with the other goods, as much as though these articles had been specifically mentioned as insured in the policy. In Harper v. The Albany Mutual Insurance Company ( 17 N. Y. 194 ), it was held that a policy upon premises privileged for a printing-office, upon its being shown that the use of camphene was necessary in conducting the business, implied an assent by the insurer to its being kept upon the premises for such use, although the restriction to its being kept upon the premises was similar to that as to spirits of turpentine and gunpowder in the present case, and that so keeping and using it did not avoid the policy. In Harper v. The New York *332 Insurance Company ( 22 N. Y. 441 ), a similar rule was not only held, but a majority of the Court went further, and held that, although the policy contained a printed clause exempting the insurer from damage from loss sustained from eamphene kept upon the premises for use, yet that this exemption did not apply to a loss from fire caused by igniting eamphene, so kept, accidentally by a lighted match. It is not necessary to go to any such extent in the present case. We have seen that, in the present ease, the policy, properly construed, covered gunpowder and spirits of turpentine, and when these articles are insured, a printed clause, prohibiting their being kept, is plainly repugnant to the written clause insuring them, and, by the authority of the cases above cited, the printed clause must be governed by the written. The policy was, therefore, not void at the time of the fire, by reason of keeping the spirits of turpentine and gunpowder. It cannot be held that the effect of the printed clause in the present case is to except spirits of turpentine and gunpowder from the general description of the property insured without overruling Harper v. The Albany Insurance Company, and Same v. The New York Insurance Company (supra). The insurer is presumed to have known what articles were usually kept in country stores, and consequently that the policy covered the powder and turpentine. The Court properly held that the opinion of the witness as to the quantity of blankets that could be put in the room in question was inadmissible. It did not appear that he had ever packed blankets, or knew any more about the space required for any given quantity than any of the jurors. Though impressed with the idea that the quantity claimed and recovered for by the Plaintiff could not have been put in the space in question, no relief can be given on that ground by this Court. It was a mere question of fact, which cannot be reviewed here. The judgment must be affirmed.

All concur.

Affirmed.

JOEL TIFFAHY, State Reporter.