forming part of the policy consisted of a loft on the fourth floor of the building known as Nos. 733-735 Broadway, in the borough of Manhattan, city of New York. Owing to the shortage of coal, incident to the World War conditions, the plaintiffs were obliged to close their place of business at about 2 p. m. January 3, 1918, and between that time and the opening for business next day the premises were entered by burglars, who obtained access by a fire escape on a court in the rear of the building and through a window of the premises opening onto the court, which they opened by breaking a hole in the glass of one of the sashes opposite the catch, and by inserting an instrument to push the catch back, and they removed goods of the plaintiffs, the value of which is not controverted, covered by the policy.

The only point presented by the appeal arises on the defense predicated on subdivision 6 of the policy, under the heading "Agreements," which is as follows:

"This policy shall be void if the conditions or circumstances of the risk are changed without the written consent of the company, and shall be void if the assured attempts in any way to defraud the company, and shall be void if the policy is assigned without the written consent of the company."

The defendant, after pleading these provisions in a separate defense, further alleged therein that after the policy was issued, and before the loss occurred, the conditions and circumstances of the risk were changed, in that "shutters were removed from said windows * * * without the written consent of the defendant."

The evidence shows that at the time the policy was issued the windows were covered and protected by iron shutters, which could be opened and closed and fastened on the inside to a bar running across the window, and that in the month of May, 1917, the iron shutters were removed and panes of heavy wire glass were inserted in the window sashes without the written consent of the defendant or its knowledge until after the loss, and the reasonable inference isand the trial court so construed the testimony-that these changes were made, not by the plaintiffs, but by their landlord, pursuant to directions and requirements duly given and made by the fire department. The policy contained no provision requiring the plaintiffs to give notice to the defendant of any change "in the conditions or circumstances of the risk," other than may be inferred from the provisions of said subdivision 6. The plaintiffs occupied the premises during business hours throughout the period, and were aware of the fact that these changes had been made, but gave no notice to the defendant thereof. The premises were properly and securely closed at the close of business on the 3d of January, 1918.

The defendant showed, without objection, by the testimony of its own inspector, who inspected the premises preliminary to the issuance of the policy, and by the opinions of other witnesses, that these changes in removing the iron shutters increased the hazard of the risk.

At the close of the evidence, both parties, in effect, moved for a direction of a verdict, and a verdict was directed in favor of the plaintiffs. The views expressed by the trial court in directing the

(182 N.Y.S.)

verdict indicate that the verdict was directed on the theory that said subdivision 6 relates to changes made by the insured, for which, on application, he might have obtained the written consent of the defendant, or which written consent the defendant might have refused; and the opinion of the Appellate Term is to the effect that said subdivision 6 should be construed as relating to the conditions and circumstances specified in the schedule annexed to the policy, consisting of statements of the assured therein designated as "warranties."

The statements which the plaintiffs warranted relate to the name under which they were doing business, their business and business address and the particular part of the premises occupied by them, to former losses by burglary and indemnities received therefor, to whether they kept a private watchman, or had a burglar alarm attachment, and would maintain it, to applications for and to other burglary insurance, and to a description and value of their merchandise. The warranties clearly relate to a continuance of certain conditions, if existing at the time, but contain no reference to the existing or the continuance of existing conditions with respect to the physical condition of the building or premises occupied by the plaintiffs. There is therefore, I think, ground for the construction of subdivision 6 given by the Appellate Term, and on that construction, assuming that that is correct, it would be perfectly plain that the policy was not invalidated by the removal of the shutters without the written consent of the defendant; but, since the defendant does not claim that it would be entitled to a reversal, if that construction be given to the policy, it is unnecessary further to consider that point.

On the defendant's theory of the construction of the policy as disclosed by its answer, and by the theory on which it defended, and on which the appeal has been argued, the policy became void ipso facto the moment the iron shutters were removed, and the plaintiffs would be without redress if their premises had been burglarized and their goods removed by burglars immediately thereafter, and in that event, under the terms of the policy, the plaintiffs would not even have been entitled to a refund of the unearned premium, so that they might have thus been deprived of the benefit of the insurance policy by the acts. of a third party, without their knowledge or consent, the first night the policy was in force.

[1, 2] I am unable to agree with that construction, and I am of the opinion that under the well-settled rule of construction applicable to policies of insurance, prepared by the insurance companies, the policy must not be so construed as to work a forfeiture, unless by clear and unambiguous language, readily understandable, not by judicial officers or trained, experienced members of the bar, but by business men of average intelligence who have occasion to require such insurance, it appears that it was so intended. Paskusz v. Philadelphia Casualty Co., 213 N. Y. 22, 106 N. E. 749, Ann. Cas. 1915A, 652; Syracuse, etc., v. Travelers' Insurance Co., 182 App. Div. 742, 170 N. Y. Supp. 351. Under that rule of construction I think that this policy was not invalidated by the action of the plaintiffs' landlord in carrying out the lawful directions of the local public authorities, without any participation of the plaintiffs therein.

[3] It would, in my opinion, do violence to the rule of construction applicable to such policies to hold that the plaintiffs were under any obligation to give notice to the defendant of these changes, even if the defense were predicated on that theory, which it is not. It certainly should not be held as a matter of law that a business man of average intelligence would understand that this policy, which is silent on the subject, required him to give notice to the defendant of such changes lawfully made in the premises by others, and if the construction of the policy presented a question of fact it was left to the trial court. If the defendant desired such notice, it should by plain and unambiguous language have imposed on the insured the duty of giving it. By the express terms of the policy the defendant reserved to itself the right through an accredited representative to inspect the premises at all reasonable times, and by notice to the plaintiffs to suspend the policy until the premises were made reasonably secure as required by its notice, and the right to be relieved from liability during such period of suspension and until formal notice to the plaintiffs of its satisfaction with the condition of the premises. I think, in the circumstances, and in any view of the case, the defendant assumed the risk of any changes in the premises lawfully required to be made by the public authorities, and made pursuant thereto by the landlord of the premises, without participation therein by plaintiffs.

It follows that the determination of the Appellate Term is right, and should be affirmed with costs.

SMITH and PAGE, JJ., concur.
CLARKE, P. J., and MERRELL, J., dissent.

FULLER v. NEW YORK, N. H. & H. R. CO. et al.

(Supreme Court, Appellate Term, First Department.

May 13, 1920.)

Judgment 164-Order opening default as to one defendant held improperly to set aside judgment of dismissal as to another defendant.

Where action was dismissed as to one defendant, and a judgment by default was entered for plaintiff as against another defendant, order opening default and setting aside such judgments on motion of the defaulting defendant was erroneous, in so far as it set aside judgment of dismissal as to first defendant, on whom motion papers were not served, where no such relief was asked for in defaulting defendant's papers. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Charles L. Fuller against the New York, New Haven & Hartford Railroad Company and John A. Archbold Forwarders, Incorporated. Judgment of dismissal was entered as to defendant Railroad Company, and judgment by default was entered for plaintiff as against the other defendant. From an order opening the default of defendant Archbold Forwarders and setting aside the judgment taken

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(182 N.Y.S.)

against it and the judgment of dismissal in favor of defendant Railroad Company, said Railroad Company appeals. Affirmed, as modified. Argued April term, 1920, before GUY, FINCH, and WAGNER, JJ. Finkler & McEntire, of New York City (Harold W. Evens, of Brooklyn, of counsel), for plaintiff.

Charles M. Sheafe, Jr., of New York City (Edward R. Brumley, of New York City, of counsel), for defendant Railroad Co.

Emanuel M. Kaiser, of New York City (Gustav Gunkel, of New York City, of counsel), for other defendant.

FINCH, J. This is an appeal by the defendant railroad company from an order which opened the default of the defendant the Archbold Forwarders, and set aside a judgment taken against it upon an inquest, and also a judgment of dismissal rendered after trial in favor of the railroad company and directing a new trial as to both defendants.

The plaintiff's assignor purchased a carload of grapes in the city of New York, for shipment to Boston. In his complaint the plaintiff set up separate causes of action against each defendant. In the affidavit made by the attorney for the defendant Archbold Forwarders, used on the motion to open its default, he states:

"In the first cause of action the defendant Archbold is blamed for violating plaintiff's assignor's instructions to ship the grapes in a refrigerator car, and in the second the railroad company by failing to protect the grapes against freezing."

Issue was joined, each defendant filing separate answers, and the case was noticed for trial January 15, 1920. The defendant Archbold defaulted. At the end of the plaintiff's case, on motion of the railroad company, the complaint was dismissed as to it, and at the close of the entire case judgment was rendered against the defendant Archbold. The Archbold Forwarders thereafter obtained an order to show cause why an order should not be made "opening its default and setting aside the judgment entered thereon."

* * *

No service of the motion papers was made upon the defendant railroad company, and the order to show cause declared that "service of a copy of this order on the attorney for the plaintiff * * * shall be sufficient." The motion was opposed by the plaintiff, but was granted, and, as above stated, the judgment was set aside and a new trial ordered as to both defendants. This was error. No such relief was asked for in the moving defendant's papers, and the plaintiff is the only one aggrieved by the entry of the judgment in favor of the defendant railroad company, dismissing the complaint as to it, and he has brought no appeal from that judgment.

The order should be modified, so as to provide for a new trial “as against J. A. Archbold Forwarders, Incorporated," only, and, as so modified, affirmed, with $10 costs to appellant against the Archbold Forwarders, Incorporated. All concur.

(192 App. Div. 151)

WEINSTEIN v. J. HAMBURGER & CO., Inc., et al.

(Supreme Court, Appellate Division, First Department. May 28, 1920.) Specific performance 108-Evidence held to justify injunction to preserve status pending suit to enforce lessee's agreement.

In suit for specific performance of lessee's agreement to assign remainder of lease term and its interest in premises, evidence held sufficient to justify court in maintaining present status of parties, until trial and determination of rights of litigants, by injunction to restrain defendant . lessee from maintaining summary proceedings to remove tenants from building.

Appeal from Special Term, New York County.

Action by Harry Weinstein against J. Hamburger & Co., Incorporated, and Gillette & Livesey, Incorporated. From an order continuing an injunction pending determination of the action, defendants appeal. Order modified and affirmed.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.

Lewis & Schaap, of New York City (Herman M. Schaap, of New York City, of counsel), for appellants.

L. & M. Blumberg, of Brooklyn (Leopold Blumberg, of Brooklyn, of counsel), for respondent.

DOWLING, J. This action is brought to obtain a judgment that the defendant J. Hamburger & Co., Incorporated, be directed to specifically perform its agreement, and to assign the rest, residue, and remainder of its term of lease and its interest in the building 291 Washington street, borough of Manhattan, city of New York, and that during the pendency of the action it be restrained from interfering with, or molesting, the possession of the plaintiff. Plaintiff claims that on January 7, 1919, defendant J. Hamburger & Co., Incorporated, entered into an agreement in writing with the predecessor of the defendant Gillette & Livesey, Incorporated, whereby the former leased to the latter the building 291 Washington street, borough of Manhattan, with the exception of the basement; that as part of the consideration of said letting it was agreed that at the expiration of one year from the date of the lease the lessee should have the option of taking over the lease of the building made by the owner, Fannie R. G. Ely, to J. Hamburger & Co., Incorporated, upon the payment of $500; that on December 31, 1919, Gillette & Livesey, Incorporated, elected to exercise its option, and so notified J. Hamburger & Co., Incorporated, and requested that an appointment be made, when the transaction could be closed; that pursuant to an appointment made the parties met at the office of the attorney for J. Hamburger & Co., Incorporated. Gillette & Livesey, Incorporated, requested an assignment of the lease and offered to pay $500 therefor, but J. Hamburger & Co., Incorporated, refused to make such assignment; that Gillette & Livesey, Incorporated, sent its check for $500 as payment for said assignment to J. Hamburger & Co., Incorporated, which still retains

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