47 Misc. 89 | N.Y. App. Term. | 1905
Upon a former trial the complaint in this action was dismissed upon the ground that plaintiff had not furnished the defendant with formal proofs of loss as required by the policy. It did appear, however, that an unsigned paper had been sent to defendant containing notice of the fire and an itemized list of articles and value. While it Avas conceded that this paper did not amount to, and could not take the place of formal proofs of loss, yet it was held that there Avas evidence upon which a jury might find that the defendant, had waived such proofs. That evidence consisted of proof that the defendant retained the formal notice for sixty days without objection and soon after receiving it offered to pay to plaintiff the sum of $38, as an adjustment of the loss. The same facts appeared upon the present trial, and justified the submission of the case to the jury on this feature. There is no proof of the amount of plaintiff’s loss, but this is due to the fact that all the evidence offered on that point was excluded. Among other things plaintiff sought to show the cost price of certain articles which had been destroyed. In the case of articles destroyed by fire such evidence has frequently been held to be competent and is' often the only available evidence. An attempt was also made to prove value by a witness who had some knowledge of the property destroyed and had been for some years in the business of dealing in second-hand furniture. It may be that he was not a very satisfactory expert, but we think that his evidence should have been received, leaving it to the jury to give it such weight as it deserved.
Leyeetritt and Greeebatjm, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event. • '---