Statement of the Case. SAMUEL PINDAR, ASSIGNEE, &C., RESPONDENT, V. THE KINGS COUNTY FIRE INSURANCE COMPANY, AP PELLANTS. Insurance-Condition- Construction. When a policy of insurance is upon a building and a stock of goods, etc., such as is usually kept in country stores, it covers all articles of merchandise coming within such description, even though it include articles generally prohibited except at special rates. IN November, 1860, Alfred Pindar procured from the Defendant a policy of insurance against loss by fire upon a building in Rhinebeck for one thousand dollars for one year; also for fifteen hundred dollars on his stock, such as is usually kept in country stores, for one year. The policy contained a clause providing that if the premises, at any time during the period for which the policy would otherwise continue in force, should be used for storing or keeping therein any article, goods or merchandise denominated hazardous or extra-hazardous, or specially hazardous in the second class of hazards annexed to the policy, except as therein specially provided for, the policy should be void while the premises were so used. Among the articles so specified as extra-hazardous was spirits of turpentine, and among those specially hazardous, gunpowder. The premises and stock of goods were consumed by fire during the life of the policy. At the time of the fire, about twenty gallons of spirits of turpentine and fifteen pounds of powder were kept upon the premises. After the fire, Alfred Pindar assigned the claim upon the policy to the Plaintiff. Upon the trial, the Plaintiff proved that spirits of turpentine and gunpowder were articles usually kept in country stores. The counsel for the Defendant duly excepted to this proof. Upon the trial, it became a question as to the quantity of blankets in a small room upon the premises at the time of the fire. The Defendant's counsel inquired of a witness what number of blankets pressed could be got into the room. The Plaintiff's counsel objected to the question, and it was overruled by the Court and the Defendant's counsel excepted. The counsel for the Defend Opinion by GROVER, J. ant moved for a nonsuit upon the ground that the policy was not in force at the time of the fire, for the reason that prohibited articles were, at the time, kept upon the premises. The motion was denied by the Court, and the Defendant's counsel excepted. The jury rendered a verdict for the Plaintiff, upon which judgment was entered, which was affirmed, upon appeal, by the General Term, and the Defendant appealed therefrom to this Court. H. A. Nelson for the Respondent. Thompson & Weeks for the Appellants. 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 Opinion by GROVER, J. 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 camphene kept upon the premises for use, yet that this exemption did not apply to a loss from fire caused by igniting camphene, 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 case, 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. JOEL TIFFANY, Statement of the Case. CAZET AND ASTOIN v. HUBBELL AND OTHERS. PUTNAM AND OTHERS v. MEDBURY AND OTHERS. HAMILTON v. SAME. SAWYER v. HUBBELL AND OTHERS. Foreclosure Judgment—Purchaser―Jurisdiction. One who purchases under a judgment of foreclosure, thereby submits himself to the jurisdiction of the Court; and he may be compelled, on motion, to comply with the conditions of sale. When the purchaser is in possession, under a decree which has not been fully executed, mere lapse of time is no answer to a motion to compel the payment of the amount of his bid. When a motion is made, by those having an interest in the fund, that the money be paid into Court, it constitutes no valid objection that one of the original parties is dead, and that the action has not since been revived. APPEAL by Alrick Hubbell from an order of the Supreme Court, in the Eighth district, affirming an order at Special Term, requiring the Appellant to pay to the treasurer of Monroe county, subject to the order of the Court, the unpaid balance of his bid, on a purchase under a judgment of foreclosure, amounting to $6,362.55, with interest from the 14th of July, 1849; being the surplus moneys on such sale claimed by the Respondents Cazet, Putnam, Hamilton and others, who were judgment creditors of the mortgagor. It appeared by the papers on which the motion was founded, that Cazet and Astoin, two of the Respondents, recovered judg ment in the Supreme Court against Alfred Hubbell, on the 15th of January, 1849, for $1,125.64; that Hollister and Churchill recovered a like judgment for $896.30, on the 25th of that month; that on the same day John Williams recovered a like judgment for $193.27, and Putnam and Whitney a like judgment for $418.27; that Joseph Putnam recovered a like judgment for $416.55, on the 16th of the same month; and Samuel Hamilton Statement of the Case. a like judgment for $1,042.49, on the same day. Each of the judgments was duly docketed at the time of its recovery, in the office of the clerk of the county of Monroe, in which the debtor resided, and the executions thereon were respectively returned unsatisfied. On the 12th of the same month, Hubbell, the debtor, assigned his real and personal property to Messrs. Smith and Medbury, ostensibly for the benefit of his creditors. On the 2d of May, 1849, James W. Sawyer commenced an action for the foreclosure of a mortgage on real estate of Alfred Hubbell, situate in the county of Monroe, and obtained the usual judgment on the 20th of June, 1849. Under this judgment the premises were sold by George Hart, then sheriff of Monroe county, and were purchased by the Appellant, Alrick Hubbell, on the 14th of July, 1849, for the sum of $10,100. Of this amount, the sum of $87.67 was applied in payment of the attorney's costs; $106.65 in extinguishment of taxes on the property; $118.36 in satisfaction of the fees and disbursements of the sheriff; and $3,424.77 in payment of the judgment of foreclosure, which Alrick Hubbell then owned, and for which he gave his receipt to the sheriff. The balance of the purchase-money, amounting to $6,362.65, with interest, and constituting the surplus fund on the foreclosure sale, has never been paid over, but is still retained by the Appellant. He received from the sheriff the usual conveyance, and has since sold most of the property. Alfred Hubbell, the mortgagor, and the sheriff who made the sale, both died insolvent, and two of the sheriff's sureties are dead. The judgment directed that the surplus moneys arising from the sale should be brought into court to abide its further order. Suits in equity were commenced in 1849 by Putnam and others of the Respondents, and in 1850 by the Respondent Hamilton, for the purpose of setting aside the assignment of Alfred Hubbell to Messrs. Smith & Medbury, and of reaching the real and personal property, which he had sought to withdraw from the reach of judgment and execution. The assignees and the Appel |