Schindler v. United States Fidelity & Guaranty Co.

109 N.Y.S. 723 | N.Y. App. Term. | 1908

Per Curiam.

This action was brought to recover upon a policy issued by the defendant to the plaintiff insuring the plaintiff against “ Direct loss by burglary, larceny or theft.”

On the morning of February 9, 1904, the plaintiff’s wife placed a bag containing jewelry in a closet. She locked the closet, but left the key in the door. She was not at the house in the afternoon until about four-thirty or five o’clock. The servant in the employ of the plaintiff was also out during this afternoon and returned about half an hour before the plaintiff’s wife. At about eight o’clock in the evening, the plaintiff’s wife again went out. When she returned, the bag of jewelry, which she swears she left in the closet, was missing. There was no evidence upon the question of theft or burglary other than that recited above. The mere fact that the jewelry was missing from the closet where it had been placed was not, standing alone, sufficient to sustain a recovery under the terms of this policy.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildebsleeve and Dayton, JJ., concur; Seabury, J., taking no part.

Judgment reversed and new trial ordered, with costs to appellant to abide event.