Opinion
February 24, 1953.
In an action brought by plaintiff on a policy of insurance issued by defendant, to recover the value of certain jewelry insured thereunder against risk of loss, and allegedly lost or stolen from plaintiff, defendant appeals from an order granting plaintiff's motion for summary judgment and referring the matter to an official referee to fix damages. Order reversed on the law and the facts, with $10 costs and disbursements, and motion denied, without costs. In our opinion the facts as to the loss or theft of the insured articles are exclusively within the knowledge of the moving party, since appellant has only hearsay knowledge thereof, derived from statements made by respondent herself. In such a case summary judgment should not be granted, and respondent should be required to prove her case by common-law proof, subject to cross-examination. ( Suslensky v. Metropolitan Life Ins. Co., 180 Misc. 624, affd. 267 App. Div. 812; Brooklyn Clothing Corp. v. Fidelity-Phenix Fire Ins. Co., 205 App. Div. 743; Woodmere Academy v. Moskowitz, 212 App. Div. 457.) Nolan, P.J., Adel, Wenzel, MacCrate and Schmidt, JJ., concur.