James C. Rann et al., Executors, etc., Appellants, v. The Home Insurance Company of Columbus, Ohio, Respondent

James C. Rann et al., Executors, etc., Appellants, v. The Home Insurance Company of Columbus, Ohio, Respondent. (Argued December 18, 1874; decided December 22, 1874.) Conditions in a contract of insurance limiting the liability of the insurer will not be extended by implication, so as to include cases not clearly or reasonably within the words, as ordinarily used and understood. Defendant issued a policy of insurance upon the dwelling-house of R, plaintiffs’ testator. The policy contained a condition that work, in altering or repairing the premises, would vitiate the policy, unless permission therefor was indorsed on the policy; five days, however, were allowed each year “ for incidental repairs ” on dwelling-houses, without notice or indorsement. Plaintiffs procured a carpenter’s and mechanic’s risk for two months, and, during that time, made extensive repairs. Work had ceased for about two weeks, and the two months had expired, when plaintiffs commenced the further repair of putting on new sidings, the old having become decayed. This work had been in progress three days, when the building was destroyed by fire, the work of - an incendiary. In an action upon the policy, held, that the work being done was embraced in the term “ incidental repairs.” and did not forfeit the policy. Appeal from order of the General Term of the Supreme .Court, in the fourth judicial department, reversing a judgment in favor of plaintiffs, entered upon the report of a referee. • This action was brought upon a policy of insurance, issued by defendant to William Rann, plaintiffs’ testator. The policy was issued September 14, 1870, for the sum of $1,500, term, three years, upon a dwelling-house owned by Rann. The policy contained this clause: “ Builders' Bisk. — The working of carpenters, roofers, tinsmiths, gasfitters, plumbers, or other mechanics, in building altering or repairing the premises named in this policy, will vitiate the same unless permission for such work be indorsed in writing thereon, except in dwelling-houses only, where five days are allowed in any one year for incidental repairs, without notice or indorsement.” A carpenters and mechanics’ risk for two months was granted, and indorsed on the policy, dated December 31, 1870. The referee found, in substance, that Bann, during the two months, made extensive repairs and improvements, which work continued up to March 1, when it ceased. Two weeks thereafter carpenters, in the employ of Bann, commenced work, putting new sidings on the outside of the building, in place of the old clapboarding. This work liad progressed three days, when the building was destroyed by fire, which was the work of an incendiary. As matter of law, the referee found that, under the said condition, the work was authorized, and did not vitiate the policy. James Maxon for the appellants. The repairs being made at the time -of the fire were such as were incidental to the use of the property, and were covered by the clause in the builders’ risk, allowing five days for incidental repairs. (May on Ins., 244, § 226.) The insurer assumes the risk of necessary and ordinary repairs, in the absence of any stipulation to the contrary, (5 Hill, 10 ; 2 Den., 75; 3 Coms., 122; 18 N. Y., 169.) L. W. Hall for the respondent. A condition in a policy, not complied with, vitiates it. (Mead v. N. S. Ins. Co., 7 N. Y., 530.) [MAJORITY — Allen, J.] Allen, J. Insurers have the right to insist upon the due observance of every condition to which the assured has assented by accepting the policy or ■ otherwise, and to the benefit of every restriction and limitation upon their liability, provided for in the contract of insurance. In the interpretation of conditions inserted in and making a part of the contract by insurers and in language chosen by them, care should be taken that a strained' and unnatural effect- should not be given to words and terms to the prejudice of the insured, and in no case should they be extended by implication, so as to embrace cases not clearly or reasonably within the very words of the condition, as such words are ordinarily used and understood. Ho opinion was prepared or reasons assigned by the Supreme Court for the reversal of the judgment of the referee. Upon a careful examination of the whole case, although the facts are not before us for review, we have been unable to discover any error of law or of fact in the rulings and decision, or final report and judgment of the referee. There is no ambiguity in the clause in the policy which is relied upon as the foundation of the defence or in the report of the referee upon the facts bearing upon the alleged breach of the condition referred to. The plaintiffs had procured from the defendant and availed themselves of a carpenters’ and mechanics’ risk for two months, which had expired on the first day of March preceding the destruction of the premises by fire, and they had during that time made, as it would seem, extensive repairs- and improvements to and changes in the insured dwelling. Work under this special permit had ceased or been suspended, and which word is used is not material, for some two weeks when the plaintiffs commenced the further repair of the house by putting on new siding on place of the old, which had become decayed and dilapidated. There is no pretence that the work was not properly a repair, a process for the restoration to a sound state of a part of the house which was decayed. It was not a work changing the structure or frame-work of the building, or making additions to it. By the terms of the policy five days were allowed the insured in each year for “ incidental repairs, without notice or indorsement,” and the policy was not avoided, or the condition against the working of the carpenters and other mechanics in the building, violated by doing the proper work of repair during those days. This work of repair had been in progress less than the five days allowed before the loss of the building by one of the risks insured against. The fire was not caused either proximately or otherwise by the repairs or work then being done, but had its origin in other causes, and entirely without the fault of the assured. The repairs permitted by the policy are not merely ordinary repairs, but “ incidental,” that is occasional repairs, such as are not regular, but as occasion may require, or are proper to be^made, to restore or keep the building in proper condition. The restoration of a roof blown off by the winds, the putting on of clapboards torn off by lightning, would be incidental repairs, and within the permit of the policy, although they could hardly be called ordinary repairs. The insured was not tied up either to ordinary or even to necessary repairs. He was at liberty to make such incidental repairs as he deemed necessary or proper for the number of days specified in each year, and did not forfeit his policy because the insurer or some other persons might think they were not neeessaiy. There was no error in the judgment of the referee, and the order granting a new trial must be reversed, and the original judgment affirmed, with costs. All concur. Order reversed and judgment accordingly.