Eichner v. Liverpool & London & Globe Insurance — 29 N.Y. St. Rep. 411

Majority

p. 411

Minna Eichner, Resp’t, v. The Liverpool & London & Globe Ins. Co., App’lt.

(New York Common Pleas, General Term,

Filed February 3, 1890.)

Headnote

Insurance (fire)—Proof of loss.

In an action upon a policy of fire insurance some of the property for which damages were sought to be recovered was such as usually do not belong to women, and no proof was given that such articles actually belonged to plaintiff. It appeared that she had settled with another company on the terms of an appraisement made under this policy. Brld, that as it seems from the testimony that she did not comply with the condition of the policy as to ascertainment of the loss, or was bound by such appraisement, a reargument is ordered as to these points.

Motion for a reargument.

Butler, Stillman & Hubbard, for app’lt; H. Joseph, for resp’t

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 the 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 case, 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, unless waived, is a condition precedent of the right of plaintiff to recover. Prest. D. & H. C. 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 not 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 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.

Bookstavee and Bischoff, JJ., concur.