Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.
This is an appeal by the plaintiff from a judgment for defendant entered in the Hudson County Court pursuant to a jury verdict.
The plaintiff was duly appointed administrator cum testamento annexo of the estate of Agnes Grace Williams which included three houses located at 419-421-423 Pacific Avenue,
Jersey City. In August, 1947, the defendant issued three insurance policies which insured the "Legatees and Estate of Agnes Grace Williams" against loss by fire; policy No. 179935 covered 419 Pacific Avenue, policy No. 179936 covered 421 Pacific Avenue and policy No. 179934 covered 423 Pacific Avenue. In December, 1947, the three houses were damaged by fire and the plaintiff sought recovery on the policies to recover the amount of the loss. Hogan v. Hodge , 6 N.J. Super. 55 (App. Div. 1949).
The pretrial order dated January, 1951, discloses that the defenses asserted by the defendant were: (1) that the plaintiff was not the named assured and had no insurable interest, and (2) that the premises were used "for the housing of roomers in violation of a provision of the policy of insurance." At the commencement of trial in March, 1951, the court excluded the first defense as being without merit and the case proceeded on the issue of whether the premises were used for the housing of roomers in violation of a provision in the policies. After testimony was taken the court rendered judgment for the plaintiff on the policies which related to 419 and 421 Pacific Avenue and for the defendant on the policy which related to 423 Pacific Avenue. In due course the plaintiff sought to set aside the judgment for defendant, resting his motion upon a "no control clause" endorsement which had not been considered during the trial. Thereafter, the court vacated the judgment for defendant and directed that the matter "be set down for trial and heard on its merits."
On April 12, 1951, a new trial on the plaintiff's claim for the fire loss to 423 Pacific Avenue was held before another judge. The policy was introduced in evidence and the main body thereof, in the standard form prescribed by the Legislature, contained no express restriction against boarders or roomers. R.S. 17:36-5.7. However, endorsements attached to the policy included the following provisions, among others:
"Boarders -- Permission is hereby granted for five boarders, or lodgers, in the dwelling, or more than five boarders or lodgers, it
being understood and agreed that in such case there is not more than a total of five bedrooms in the dwelling.
No Control Clause -- This policy shall not be affected by failure of the insured to comply with any of the warranties or the conditions endorsed hereon in any portion of the premises over which the insured has no control."
See R.S. 17:36-5.5. Cf. R.S. 17:36-5.6; Herbert L. Farkas Co. v. New York Fire Insurance Co. , 5 N.J. 604, 609 (1950). The plaintiff testified that the insured premises consisted of a three-story, one-family dwelling which was rented to Mrs. Small and was occupied by her as tenant at the time of the fire and for many years prior thereto. He was cross-examined at length as to his knowledge and control of her use of the premises. He stated that it was rented to her as a one-family house and that he was unaware of any other use; that he did not visit the premises except on a few occasions when asked to arrange for repairs, and that the rent was collected by an agent. Mrs. Small testified that there were five regular bedrooms in the premises which were occupied by her family and by Mr. and Mrs. Rice and daughter, Mr. and Mrs. Miller and Mr. Jones, as boarders. In addition, Mrs. Small's son occupied a bed which had been placed in the dining room. He had returned from military service about a year before the date of the fire and, there being no other quarters available, Mrs. Small arranged for his sleeping in the dining room.
At the conclusion of all of the testimony both parties moved for entry of judgment. The court denied these motions stating that it would send the case to the jury on the factual issue of whether there were five or six bedrooms in the house. Thereupon the attorney for the plaintiff inquired about the no control clause but the court indicated its view that the plaintiff could place no reliance thereon. The sole issue submitted to the jury related to the number of bedrooms and it was instructed to return a verdict for the defendant if it found that there were six bedrooms in the ...