47 N.Y.S. 315 | N.Y. App. Div. | 1897
The plaintiff’s alleged claim was stubbornly contested, and, upon.. the evidence, the amount of his loss appeared to be a question of ' ' much uncertainty, especially so far as related to the stock of liquors in the building at the time of the fire. The firm of McGrath & Sherlock did not, nor did the plaintiff after he became the sole proprietor of the retail liquor store, keep any books or have any inventory. The quantity of the stock then there was the subject of estimate, aided so far as might be by the cash received and put in bank during 'the time the- business had been conducted. The theory upon which the plaintiff, by his evidence, proceeded to make the estimate was,, that the bills represented a stated amount paid for the stock during the period, which was sixty-nine weeks ; that the sales during that time averaged a certain amount weekly ; that one-half of the amount of the proceeds of the sales was profit, and that there remained, a stated quantity of the stock after the fire damaged a certain estimated amount. By this method the balance was found, which constituted the extent of the loss and damage to the stock by the fire. This is the manner in which the figures for the preliminary proofs of loss, as well as for the purpose of trial, were obtained on the part of the plaintiff.. There was a wide difference between the plaintiff’s statement of the loss of stock and that given by the defendant’s adjusters who made examination and a report after the fire: It is useless here to attempt to explain these divergent theories of computations in
The plaintiff produced bills which he testified represented the aggregate amount of the actual expenditures which he had stated were made for the stock, furniture, fixtures and decorations in the store. The bills were offered and received in evidence, and to their reception the defendant’s counsel excepted. The number of these bills was large. They are set out in the printed case, of which they occupy over fifty pages, and are said to amount in the aggregate 'to over $21,000.. They appear by the plaintiff’s evidence to be the original bills. It is not reasonable to suppose, as he testified, that he could state from memory the amount of the purchases that were represented by the bills. Prior to the opinion of Mr. Justice Cowen in Merrill v. The Ithaca & Owego R. R. Co. (16 Wend. 586), the rule in this State was apparently such as to render evidence of .the character of these hills inadmissible, although reference could have been made by a witness to a memorandum to refresh his recollection. If he failed to do that so as to enable him to testify to the fact thus represented independently of it, his evidence, as well as that of the memoraydum, although original and made by him, was not available. The view of- the court in the Merrill case was that those entries or memoranda which are original, and which the witness is able to verify, hut cannot independently of them recollect the facts there pre7 sented, are admissible as evidence. In that respect the Merrill case has since been followed, and its doctrine is the rule in this State on the subject. (Bank of Monroe v. Culver, 2 Hill, 531; Halsey v. Sinsebaugh, 15 N. Y. 487; Guy v. Mead, 22 id. 462; Nat. Ulster Co. Bank v. Madden, 114 id. 280.) The evidence tended to prove-that .those were the original bills representing the goods purchased-
A different rule prevails when legal' error is raised by exception to the introduction of evidence. Then the presumption of prejudice arises effectually, unless it is seen that-the party could not have been prejudiced by it. - Our attention is called to. cases' cited by the defendant’s counsel to support his contention for the. non-admissibility of the bills. Those cases do not seem necessarily to have such effect. In Donlon v. English (89 Hun, 67) the bill of items was not an original memorandum, nor was there any necessity for its introduction in evidence, within the rule before - mentioned. In Rouss v. McDowell (88 Hun, 532) the. memorandum, offered in evidence .was not the ¿figinal memorandum, nor. was it shown to have been correctly made from the original, or that the. latter could not be produced. In Peck v. Valentine (94 N. Y. 569) the original memorandum' which had been made by a third person (Leggett), and delivered to one of the parties, was not produced,, but such party sought to introduce what he testified was a copy of. the memorandum. The third person did not undertake to testify to the contents of the memorandum. In holding the copy inadmissible, the court, by Judge Andbews, said that “the original memorandum, if it had been produced, could have been used byLeggett to refresh his recollection, or if he had forgotten the facts.
The plaintiff gave evidence tending to prove the expenses incurred by him in repairing the injury done by the fire to the bar, furniture, fixtures, decorations, etc., which were the subject of the insurance. The exception to the „ reception of the evidence of this character was not well taken. The evidence was limited to reparation, and included nothing beyond restoration. While the evidence of the expense was not necessarily controlling as to the extent of the damage to those things, it was competent upon the question for the consideration of the jury. It was competent for the plaintiff to prove by evidence to the effect that there was a prevailing custom among insurance adjusters, universally adopted, as to the method employed in making up proofs of loss of retail stocks of goods, where there is no inventory or books of account to enable them to be made up from. In fact the method, which the evidence tended to prove had the support of the universal custom in arriving at the sum of the loss, seems to be the only practicable way open to make estimate of the loss. When the usage has become universal the contract of insurance may be deemed to have been made in contemplation that it might be available when a case came within its application. (Walls et al. v. Bailey, 49 N. Y. 464.) The fact that such. custom could be applicable to only a portion of the loss does not go to the question of the admissibility of the evidence.
As independent proof, the agreement of adjustment made between the plaintiff and the Caledonian and Hanover companies was incompetent for any purpose. But the defendant’s counsel had proved by the witness (adjuster) that he had received a draft referred to for $2,600, drawn by the Caledonian Company, payable to the order of the plaintiff. The plaintiff’s counsel, on cross-examination of the
The plaintiff offered evidence, which was received, to the effect that he had paid $1,50 for painting, after the fire, the outside of the building, the first floor and the cellar of which he occupied as the retail liquor store or saloon. The exception to the reception of this evidence seems to have been well taken, because the damage by the fire to the outside painting of the building did not come within the •damages covered by the policy. , It did not, according to common acceptance, coiné within the meaning of “ decorations, to walls and ceilings.” Those terms import internal improvements of such character.
The court was requested to charge the jury “ that if the plaintiff had it in his power to produce evidence of the amount of stock which he had in the wine closet previous to the fire, and purposely neglects and refuses to produce such evidence- on the trial, the jury may consider such refusal to produce the evidence, and may infer -that the said evidence would be unfavorable to his ■ claim.” The 'court in response said: “ I will charge this, that they may take that into consideration in determining the questions of fact that I have submitted to them.” Exception was taken to the refusal to charge fully as requested. While upon such a state of facts the jury may give effect unfavorably to the party who has omitted to furnish evidence available to him, the question is wholly one for the jury;1 and ■in submitting the fact to them for their consideration, the court did all that it could be required to do. This is as far as it has been usual for the court to go in the instruction to the jury in that respect. The effect mainly of such omission is in its bearing -upon the credibility of the evidence introduced by such party and upon the inferences derivable from it. (People v. Dyle, 2l N. Y. 578; Bleecker v. Johnston, 69 id. 309, reversing Bleeker v. Johnson, 51 How. Pr. 380; People v. Hovey, 92 N. Y. 554, 559; Kenyon v. Kenyon, 88 Hun, 211; Milliman v. Rochester Ry. Co., 3 App. Div. 109, 111.)
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event, unless the plaintiff stipulates to deduct from the recovery of damages $150; in that event the judgment is so modified, and as modified, affirmed, without costs of this appeal to either party.