Eichner v. Liverpool & L. & G. Ins.

A very simple mathematical calculation shows that the verdict of the jury rendered in this action, and the judgment entered thereon, is too large, even according to plaintiff’s own showing. The return also shows that some of the property for which damages were sought to be recovered were not such as usually belong to women, consisting, as they did, of “one gent’s blue flannel suit, one coat and vest, ” and other property, and yet there was no proof in the ease, as far as we have been able to discover, to show that these articles really belonged to her, or were covered by the policy. The condition of the policy relating to the ascertainment of the amount of loss or damages is, unless waived, a condition precedent to the right of the plaintiff to recover. Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250 . The testimony in this case, as it appears from the return, is very much confused; but it would seem that the plaintiff either did nbt attempt to comply with this condition, or that, if she did comply, she was bound by the action of the appraisers, especially in view of the fact that, as to one of the two companies involved in the loss, she settled upon the terms of the appraisement. In view of these facts, we think there should be a reargument in the case. All concur.