Pearlman v. Metropolitan Surety Co. — 127 A.D. 539

Majority

p. 539

Simon Pearlman and Others, Respondents, v. Metropolitan Surety Company, Appellant.

First Department,

July 8, 1908.

Headnote

Insurance against theft — failure to establish actual loss — pleading — party — failure to show title to stolen goods.

Where a policy of insurance against burglary provides that the insurer shall not ' be liable “ 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,” there can be no recovery against the insurer when it is impossible to tell accurately from the books kept by the insured what particular goods were on hand at the date of the burglary.

There can be no recovery on said policy under a complaint which alleges that it was issued to a third party but transferred to the plaintiff with the consent of the insured, if it be not alleged that the stolen goods were the property of the plaintiffs, .or that they had possession thereof or any insurable interest therein, for otherwise there.is nothing to connect the plaintiffs with the stolen goods.

Appeal by the defendant, the Metropolitan Surety Oompany, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of blew York on the 12th day of ¡November, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of ¡November, 1907, denying the defendant’s motion for a new trial made upon the minutes.

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

p. 540

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 hooks 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 p laintiffs 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, hut 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 follow's 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.