Alvey

This is an action to recover for loss occasioned by destruction by fire of a building insured by defendant. Plaintiff recovered judgment, and this appeal is from the order denying defendant’s motion for a new trial.

The complaint alleges that defendant, on the second day of May, 1898, by its policy of insurance, in writing insured plaintiff for the term of three years, ending May 2, 1901, against loss or damage, not exceeding $1,000, by fire to her one-story, single roof, frame building, No. 952 Park Way, East Oakland, Alameda county. The house was totally destroyed by fire March 8, 1901. Defendant in its answer set forth the entire policy as the same was executed May 2, 1898, and among other things pleaded a breach of one .of the conditions of the policy, which condition- is in these words: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if •the building herein described, whether intended to be occupied by owner or tenant, be or become vacant or unoccupied, and so remain for ten days.” The policy as set forth in the answer provided for an insurance of $1,000 on the house therein described, and $400 on the furniture…