204 A.D. 174 | N.Y. App. Div. | 1922
On the trial plaintiff claimed, as part of her damages, diminution in the value of the automobile admittedly stolen from her. At the time of the theft it was almost new, it having been run only 1,000 miles. At the time of its recovery it had been considerably damaged and had received 2,500 miles additional usage.
We think diminution in value is damage embraced within the clause of the policy insuring plaintiff “ against direct loss or damage ” by the perils of “ theft, robbery or pilferage.”
This liability is not cut down by the subsequent “ additional conditions ” making defendant hable for actual cost of repairs or replacement. (Federal Ins. Co. v. Hiter, 164 Ky. 743; L. R. A. [N. S.] 1915E, 575.)
Whether or not plaintiff rendered within sixty days the statement of loss required by the policy was a question of fact for the jury.
It was not the duty of plaintiff to initiate an appraisal under the policy. (Chainless Cycle Mfg. Co. v. Security Ins. Co., 169 N. Y. 304.) It was also a question of fact for the jury 'whether or not plaintiff refused an offer of appraisal made by defendant.
A new trial will, however, have to be directed by reason of errors in the admission of evidence. The estimate made by the witness Guerin concerning the value of certain repairs was admitted over the objection and exception of the defendant. Guerin while on the stand did not testify to the necessity of the repairs covered by the estimate, nor as to the accuracy of the value of the repairs. The estimate was, therefore, mere hearsay as to defendant. So, also, declarations said to have been made by the witness Dixon were testified to by the plaintiff and the witness Cole. Dixon at the time had no connection with defendant. He appears to have
The judgment should be reversed on the law, and a new trial granted, with costs to abide the event.
Blackmar, P. J., Rich, Jay cox, Manning andKsLBY, JJ., concur.
Judgment reversed on the law, and new trial granted, with costs to abide the event.
