Utica Sanitary Milk Co. v. Casualty Co. of America

p. 353

UTICA SANITARY MILK CO. v. CASUALTY CO. OF AMERICA.

(Supreme Court, Appellate Division, Fourth Department.

July 9, 1912.)

Headnote

Appeal from Trial Term.

Action by the Utica Sanitary Milk Company against the Casualty Company of America. Judgment for plaintiff.' Defendant appeals-:Reversed, and new trial granted, unless remittitur made; in which event, modified and affirmed.

Argued before, McLENNAN, P. J., and SPRING, KRUSE, ROBSON, and FOOTE, JJ. •

Wilson, Cobb & Ryan, of Syracuse, for appellant.

James H. Merwin, of U.tica, for respondent.,

Order affirmed, without costs. Judgment reversed, and new trial granted; with costs to appellant to abide event, unless the plaintiff shall within 30 days stipulate to reduce the judgment by the sum of $175, as of the date of the rendition thereof, in which event the judgment is modified accordingly, and, as so modified, is affirmed, without costs of this -appeal to either party. All concur, except KRUSE, J., who dissents, and votes for reversal, in a memorandum.

(dissenting). In view of the finding that plaintiff failed to give immediate notice of the accident, as the policy required, and that the condition was never waived by the defendant, I do not see how this judgment can stand.

Furthermore, I think that upon the undisputed proof the plaintiff is not entitled to recover. Merely because Hatfield was the treasurer and general manager of the plaintiff, and also acted as agent for the defendant company, did not, as it seems to me, relieve the plaintiff from giving the notice required by the policy; nor was the plaintiff relieved from giving such notice because he believed (as the trial court finds), that no claim would be made on account of the accident.

I therefore vote for reversal.