Summary
In Pearlman v. Metropolitan Surety Co. (127 App. Div. 539), after quoting a similar provision, the court said: "The plaintiffs did produce some books, but the evidence respecting them, including that of one of the plaintiffs, was to the effect that it was impossible to tell from the books as kept, that the goods on hand on any particular day could be accurately determined.
Summary of this case from Wolowitch v. National Surety Co.Opinion
July 8, 1908.
David McClure, for the appellant.
W.M. Seabury, for the respondents.
The defendant appeals from a judgment for the damages alleged to have been sustained by plaintiffs from a burglary against which defendant had issued a policy of insurance. The plaintiffs failed to prove by any sufficient evidence the value of the goods alleged to have been stolen. The testimony upon that point was most vague and indefinite. Among the conditions of the policy was one which relieved the defendant from liability "if the books and accounts of the assured and daily tally of money are not so kept that the actual loss may be accurately determined therefrom, nor unless said loss shall have been established by competent and conclusive evidence." The plaintiffs did produce some books, but the evidence respecting them, including that of one of the plaintiffs, was to the effect that it was impossible to tell from the books as kept that the goods on hand on any particular day could be accurately determined. As the proof stood there was not sufficient evidence to justify a verdict in plaintiffs' favor. We are further of the opinion that the complaint would not uphold any recovery by the plaintiffs. The allegations are that a policy was issued to S. Pearlman Bro., and that subsequently by consent of defendant it was transferred to plaintiffs It is then alleged that upon a certain date property of the kind mentioned in the policy was stolen from the premises named in the policy, but there is no allegation that the goods so stolen were the property of the plaintiffs, or that they had possession thereof, or had any insurable interest therein. In short there is nothing to connect the plaintiffs with the stolen goods. This objection was duly taken at the trial. It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
INGRAHAM, McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.