152 F.2d 963 | 2d Cir. | 1945
The policy insured plaintiff against any loss to described jewelry “arising from any cause whatsoever, except as hereinafter mentioned.” Among the exceptions was
The statements as to plaintiff’s information about the theft from the consignee’s employee in the complaint were surplusage. The burden of proving that the loss came within the exception rested on defendant. Agricultural Insurance Co. v. Rothblum, 147 Misc. 865, 265 N.Y.S. 7. The trial judge, because he was unable to determine from the evidence whether or not such a theft occurred, found that defendant had not borne this burden. The trial judge saw and heard the witnesses. We cannot possibly say that his finding was “clearly erroneous.” Nor can we agree with defendant’s argument that, in the circumstances, there was a variance between plaintiff’s pleadings and the proof at the trial.
Affirmed,