Page:Federal Reporter, 1st Series, Volume 1.djvu/404

396 FEDERAL REPORTER. �•would lie under the later statuts, therefore an amenclment would have been impossible if suggested. In the present case the pleader relies upon the same precise facts as in the original complaint. He merely changes the averment as to the statuts violated, referring to a later act which was iden- tical with, but passed as a substitute for, the one first referred to. The cause of action was precisely the same. �The motion is denied. The amended complaint is held to have been properly filed, and the defendants' time to answer or demur to it is extended until the expiration of 20 days from the service of this order. ���Etjmsey V. Phœnix Insurance Company. {Circuit Court, N. D. New Ywk. Pebruary 28, 1880.) �Insuhance — Equitable Owner — Insubablb Intehest — Policy. — A vendee In possession, under an executer}' contract of purchase, is an " unconditional and sole owner of the property," within the terms of a policy of insurance. �Same— Statembnt of Intbrest— iioss Payable to Legal Owneb "as ms Intebest mat appear." — An application for insurance by such vendee, without a specifie statement of the nature of his interest, is net "an omission to malte known every fact material to the risk," witliin the terms of the policy, where such policy was made payable to the vendor " as his interest may appear." �Same — Leasb dp Pkbmises. — The lease of the insured promises by the vendee did not avoid the policy under the terms of a condition that such policy should be void "if the property be sold or transferred, or any change take place in title or possession, whether by legal process, judi- cial decree, voluntary transfer or couveyance." �Same — Proop op Loss — Waiveu dp Defects. — The repudiation of any liability under the policy to the person entitled to demand payment of the same, waives any imperfections in the preliminary proofs of loss. �Motion for new trial. G. Wilcoxen ,for complainant» E. Newcomb, for defendant. �Wallaoe J. The policy upon which thîs action was brought insured the dwelling-house of one Zimmer, and the ��� �