Polstein v. General Acc., Fire & Life Assur. Corp.

Majority

p. 868

POLSTEIN v. GENERAL ACC., FIRE & LIFE ASSUR. CORP.

(Supreme Court, Appellate Division, First Department.

April 28, 1916.)

Headnote

Insurance @=665(4)—Burglary Insurance—Actions—Evidence—Sufficiency.

In an action on an insurance policy, where the condition of liability was proof of larceny, proof of a loss of jewelry, whore the circumstances did not show the method of loss or inhibit an inference of misplacement, etc., will not warrant a judgment against the insurer.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1722; Dec. Dig. <@=665(4).]

Appeal from City Court of New York, Trial Term.

Action by Isaac Polstein against the General Accident, Eire & Life Assurance Corporation. From a judgment for defendant, plaintiff appeals.

Determination and judgment affirmed.

See, also, 90 Mise. Rep. 3, 152 N. Y. Supp. 906 , 157 N. Y. Supp. 1142 .

The opinion by Judge McAvoy, in the City Court, follows:

The condition of liability is the proof of larceny. Without its occurrence no predicate of damage can arise. Proof of persuasive nature must be given of every fact essential to the judgment or finding of a larcenous taking. Proof means evidence consisting of a direct communication of knowledge acquired through the senses of the happening of the fact itself, or evidence of a combination of facts called circumstances, from which the fact required to be

p. 869

established is necessarily inferred. It is a judicial postulate that inference must be legitimately derived from the proven circumstantial facts and follow their establishment to the extent of at least moral certainty. All possible error is, of course, not excluded in any human mode of trial of facts. A doubt should not survive the proof, in the sense of doubt as to where the greater weight of evidence lies. Here a conclusion ought not to have been readied that the proof of circumstances justified the inference of a caption and asportation. A loss of the jewelry is undoubted. The method is not proven. The circumstances do not inhibit a misplacement, or other disposal not recalled. For this lack I must hold the verdict unauthorized, and, upon the reservation at the trial, direct a verdict for the defendant.

Argued before CLARKE, P. J., and McLAUGHEIN, LAUGH-LIN, SCOTT, DOWLING, SMITH, DAVIS, and PAGE, JJ.

C. Goldzier, of New York City, for appellant.

J. L. Prager, of New York City, for respondent.

Determination and judgment affirmed, with costs. Order filed.