Pierce v. Drew. In the case of Mahady v. Bushwick Railroad Co., 91 N. Y 148; s. c., 43 Am. Rep. 661, the court upheld those cases as deciding that such a horse railroad was a structure consistent with the right of the abutting owners in the streets, and these cases can now only be considered as authority for holding that such a railroad is a street use, which is within the power of the legislature to control. The power of the legislature over the street is however not unlimited; it is to govern and regulate such use or interest in the land as vested in the corporation under the provision of the law for the taking of the property. The city took the property in trust to appropriate it as a public street, and so far as it held it for a public street it was subject to the control of the legislature. "That the power of the legislature over the streets is limited, and that the legislature had no authority to authorize a structure in a street that is inconsistent with such street use, was held in the Story case, 90 N. Y. 122; s. c., 43 Am. Rep. 146 ; and in discussing the question in that case, Judge Danforth says, at page 155: Within this principle, its [the streets] surface might be broken up for the insertion of gas or water pipes or sewers or occupied by rails imbedded therein for surface railroad, but its limit would be found in these and like uses.' It appears therefore that the power of the legislature is limited to a regulation of the use for which the property is held by the city in trust. As Judge DANFORTH says in the Story case, supra, p. 157: It is certainly well settled that when a grant is made or trust created for a specific and defined purpose, the subject of the grant or trust cannot be used for another and foreign purpose without the consent of the parties from whom it was derived, or for whose benefit it was created.' 6 "Under this statute the city takes the fee in trust to be appropriated for a public street. That is a specific and defined purpose.' The property is paid for by the abutting owners; neither the city nor the State pays the amount awarded for the taking of the property, but the owners of the land on the street pay for whatever property is taken. The statute provides that such payment shall be apportioned among such abutting owners as they shall be benefited by the appropriation of such property as a public street; and that such abutting owners have an interest in the streets, is recognized in the Story case, supra, and Mahady v. Bushwick Railroad Co., supra. I think therefore that the powers of the legislature to regulate the streets are confined to the uses for which they were taken, viz., to be appropriated and kept open as public streets. The plaintiff owns and operates a telephone line on Thirty-ninth street and uses poles to conduct the wires used in such business, and I am clearly of the opinion that such a use of the streets is not a street use, and does not come within the terms of the trust upon which the city holds the fee of the streets; and that so far as the rights of abutting owners are involved, the legislature had no power to authorize plaintiffs to use the streets for such a purpose. "Plaintiffs cite the case of People v. Metropolitan Telephone & Telegraph Co., 31 Hun, 596, but in that case the people were objecting to the use of the streets by plaintiffs and plaintiffs had the consent of the people for such use. As was said in the Story case, page 160, in speaking of the authority given by the legislature: 'So far as the public is concerned it may stand; not so far as to the individual.'” Powers v. Guardian Fire and Life Insurance Company. The sale by one partner of his share of the partnership property to another partner and the taking a mortgage back are not a breach of a condition in an insurance policy against a sale of the property, nor necessarily an increase of the risk. (See note, p. 22.) A CTION on an insurance policy. W. S. B. Hopkins, for defendant. H. C. Hartwell, for plaintiffs. The opinion states the case. HOLMES, J. The defendant insured the plaintiffs, Powers and Baldwin, against loss by fire upon certain goods owned by them as partners, including their stock in trade. Afterward Powers sold his share to Baldwin, taking back a mortgage on the same goods. The only question reported to us is whether this transaction will prevent a recovery upon the policy. If any thing can be recovered, the amount is settled by agreement. Apart from the conditions in the policy, the plaintiffs' case is clear. Both the contractees join in the suit, Tate v. Citizens Ins. Co., 13 Gray, 79; and the plaintiff Powers retained an insurable interest after his sale, under the contemporaneous mortgage back to him, which was a part of the interest which he had when the policy was issued, and carved out of it. It is not necessary to consider, whether if he had retained no interest, an action could have been maintained in the name of the two for the benefit of Baldwin alone, as was thought in Hobbs v. Memphis Ins. Co., 1 Sneed, 444, and denied in Dix v. Mercantile Ins. Co., 22 Ill. 272; or if so, what the extent of the recovery would be. The defense relied on was a breach of the conditions of the policy. The words of the only material one are, "if without such assent (the written assent of the company), the said property shall be sold." There is nothing more; no proviso against "any change of title in the property insured, or of any undivided interest therein," as in Dix v. Mercantile Ins. Co., ubi supra. We have Powers v. Guardian Fire and Life Insurance Company. no occasion to differ from this and similar decisions, so far as they go on the precise language used in those cases. But we think that the reason of the thing and the weight of precedent agree that the condition with which we have to deal has not been broken. If it were construed with any strictness against the defendant, or even literally, the condition would only be broken by a sale of the whole of "the said property" by the firm. See Savage v. Howard Ins. Co., 52 N. Y. 502, 505; s. c., 11 Am. Rep. 741; Scanlon v. Union Ins. Co., 4 Biss. 511. "The said property," taken literally, means the things described in the policy as insured, not the partial interest of one cotenant; and "sold" in connection with these words would naturally be taken to refer to the joint act of the joint party contracted with. But we need not go so far in order to decide this case. Whatever might be the effect of a conveyance of his whole interest by one partner to a stranger, we think that such a conveyance to his copartner is not a breach. Assuming without argument, that if this were otherwise, the contemporaneous mortgage back would not save the condition, we think that partners jointly contracted with as such are to be regarded as so far only one person, and the condition as so far limited to keeping the ownership of the thing insured in some member of the insured body, that changes between themselves in the relative amounts or in the nature of their respective interests, do not fall within the fair meaning of the words used. If we look beyond the interpretation of the words to the object of the condition, we cannot see any good reason why the insurers should wish to restrict the parties they deal with more narrowly. It is said that one of the parties loses his motive and right to keep a watch over the goods. That is hardly true in the present case; but even if it were, the insurers did not stipulate for any such supervision. Either partner had a perfect right to abstain from it, for any thing that is to be found in the policy. The proviso against the sale of the insured property is directed to a different point, the preservation of an insurable interest. So far as the object of preserving an insurable interest is concerned as the actual interest of partners in the firm property are necessarily fluctuating, there seems to be no particular reason why the insurers should wish to keep the state of the legal title unchanged as between them, — certainly no sufficient ground for extending the language chosen by the insurer beyond its plain and natural meaning. Powers v. Guardian Fire and Life Insurance Company. Our conclusion is sustained by the weight of authority in this country. Hoffman v. Etna Ins. Co., 32 N. Y. 405; Pierce v. Nashua Ins. Co., 50 N. H. 297; s. c., 9 Am. Rep. 235; Lockwood v. Middlesex Assur. Co., 47 Conn. 553, 564; West v. Citizens' Ins. Co., 27 Ohio St. 1; s. c., 22 Am. Rep. 294; Burnett v. Eufaula Ins. Co., 46 Ala. 11; s. c., 7 Am. Rep. 581; Dermani v. Home Ins. Co., 26 La. Ann. 69; s. c., 21 Am. Rep. 544. See also Cowan v. Iowa Ins. Co., 40 Iowa, 551; s. c., 20 Am. Rep. 583; Scanlon v. Union Ins. Co., ubi supra. As the sale by Powers was not a breach of condition, a fortiori a mortgage back to him was not. Rice v. Tower, 1 Gray, 426; Judge v. Connecticut Ins. Co., 132 Mass. 521. "If Some little reliance was placed on another condition: without such assent, the situation or circumstances affecting the risk shall, by or with the advice, agency, or consent of the insured, be so altered as to cause an increase of such risk." But if under any circumstances a general clause could be taken to carry the effect of a change of title higher than a special one expressly dealing with that subject, or if even in the absence of a special clause the present transaction could be brought within the scope of "circumstances affecting the risk" (Houghton v. Manuf. Ins. Co., 8 Metc. 114, 122; Allen v. Massasoit Ins. Co., 99 Mass. 160), we cannot say that it "caused an increase of such risk," as matter of law, after a finding for the plaintiffs. * Judgment on the finding for the plaintiffs. NOTE BY THE REPORTER. -In Hathaway v. State Ins. Co., Iowa Supreme Court, July, 1884, where one of the provisions of an insurance policy given to a partnership was that if the title of the property is transferred, incum bered or changed, * * the policy shall be void," held, that a dissolution of partnership, and a sale by one partner to the other of his interest, is a change of title to the property, and will render the policy void. The court said: “The question as to the effect on the contract of insurance of the sale by one joint owner to another, of his interest in the joint property, when the policy contains a provision against alteration, has often been before the court, and the numerical weight of authority is probably in favor of the proposition that a' sale by one partner to his co-partner of his interest in the partnership property does not have the effect to terminate a policy of insurance which contains a provision against the sale or transfer of the property.' The case of Hoffman ▼. Etna Ins. Co., 32 N. Y. 405, is probably the leading case holding this doctrine. The policy in that case provided that it should be null and void if the said property shall be sold or conveyed.' The policy was issued to a partnership, one member of which sold his interest in the property to his copartner Powers v. Guardian Fire and Life Insurance Company. before the loss, and it was held that this did not have the effect to avoid the policy. Another holding is followed in Dermani v. Ins. Co., 26 La. Ann. 69; s. c., 21 Am. Rep. 544;. Pierce v. Ins. Co., 50 N. H. 297; s. c., 7 Am. Rep. 235; Burnett v. Ins. Co., 46 Ala. 11; s. c., 7 Am. Rep. 581, and West v. Ins. Co., 27 Ohio, St. 1; s. c., 22 Am. Rep. 294, — in each of which cases the policy contained substantially the same provision. The ground upon which the holding is put is that the alienation against which the parties provided by the provision was of the whole of the insured property, and not merely a portion of it, or some interest in it less than the whole, and that a sale of his interest by one partner to his copartner was not such a disposition of the property as was contemplated by the parties when they framed the provision; that what was intended to be guarded against was such a transfer of the property as would change the proprietary interest therein of those with whom the insurers contracted, and substituted other parties with whom they had not consented to contract, but that the sale of his interest by one partner to his copartner did not have the effect to introduce a stranger to the contract, or to make any change in the condition or situation of the property or risk. "In Cowan v. State Ins. Co., 40 Iowa, 551; s. c., 20 Am. Rep. 583, the policy was issued to plaintiff, but before the loss he sold the insured property to a partnership of which he was a member. It contained a similar provision against alienation, and it was held by the court that as he retained an insura ble interest in the property the policy was not avoided by the sale; that while the clause in the policy prohibited the alienation of the insured property, it did not forbid the sale of an interest therein less than the whole, and as long as plaintiff retained an insurable interest in the property, the policy attached to and protected that interest. We think it clear that this case does not sustain the position of appellee in the case now before us. The facts of the two cases and the questions involved are essentially different. In the one, the party seeking to enforce the contract was an original party to it, and the question involved was whether his right of recovery was defeated by his sale of an interest in the insured property, while in this case plaintiff is not personally a party to the contract, and the question is whether he acquired a right of action on the policy by his purchase of an additional interest in the property. Nor do we think that the other cases cited above are conclusive of the question here involved. The provisions of the policies involved in those cases were that the policies should be null and void if the property was sold or conveyed, while the provision in this case is that if the title of the property is transferred, incumbered or changed, * the policy shall be void.' The ef * * fect of this language is materially different from that used in the policies in the other cases. The title of the property would be transferred by a sale or conveyance of it to another person. If the word 'changed ' had not been in serted in the provision, the effect of the language would have been the same as that used in the other policies, and the same construction which was put upon the provisions in those cases could fairly have been put upon it. But the parties having inserted in their contract words which fully express the provision that the policy would be avoided by a sale or conveyance of the property to a stranger, have also inserted another word by which the same |