12 Daly 387 | New York Court of Common Pleas | 1884
The complaint set forth the issuing of the policy; the answer admitted the issuing of a policy but denied that its terms and provisions were correctly or fully stated in the complaint, and defendant left it to show its terms by'its production and proper proof upon the trial of the issues. This was not a general nor a specific denial of the allegations of the complaint as required by the Code. The complaint alleged that the policy was issued by defendant on October 3d, 1881, to Willy Wallach (plaintiffs’ testator) for a valuable consideration, whereby for the period, of one year from 12 o’clock noon on the 9th day of October, 1881, to 12 o’clock noon on the 9th day of October, 1882, the defendant insured said Willy Wallach in the sum of $5,000 from loss or damage by fire on merchandise, hazardous and extra hazardous, including stationery and lithographic prints, his own or held by him in trust or on commission or sold but not delivered, contained in the buildings situate Nos. 35, 36, 37 and 38 Park Row, Nq. 4
It appears from the statement in the bill of exceptions that there was other insurance upon the stock amounting to the total sum of $57,000, all of which had been paid. One question in the case was whether property had been destroyed by the fire exceeding in value that amount. It was left to the jury, und'er the instruction that the plaintiffs could only recover for the amount of property actually destroyed and covered by this insurance; that the plaintiffs assumed the amount destroyed to be $72,000, and that if such was the fact, as the whole insurance, including this $5,000, would be $62,000, plaintiffs would be entitled to recover ; but if the jury found that the loss did not amount to $62,000 plaintiffs could only recover the amount which might possibly be covered by the policy. The defendant asked the court to charge that if the jury was not satisfied that the loss amounted to $57,000 they could find a verdict' for defendant. The judge refused, saying that he had instructed the jury as much as lie was called upon to do. Defendant excepted. I think that the jury clearly understood from the charge as made, part of which I have quoted, that the plaintiffs could not recover from this defendant for losses for which they had been indemnified by the other insurance; the exception was therefore not well taken.
The fire occurred January 31st, 1882. During the first week of January, 1882, the employés of the assured commenced taking an inventory, which was not completed at the time of the fire, and no prices nor values were attached to the inventory until after the fire. The books containing the inventory were admitted in evidence by the court as contemporaneous entries at the time stock was taken, and merely for the purpose of identification, so as to enable the witnesses to testify to the contents of the entries, not as evidence themselves.
It was not questioned that the goods mentioned in these books of inventory were in the store when the entries were made, but it was objected that sales had been made from the same shelves during the entire month, and also that the prices were affixed after the fire.
The fact that sales were made did not render the inventory as such inadmissible in evidence." The inventory was allowed as evidence of the goods actually in the store when it was made, not as a list of the goods destroyed by the fire. What was destroyed could be ascertained by subsequent proof of sales. The bill of exceptions does not show that there was no proof of the sales made in January. I think on the contrary that such proof was in the case from -the statement in folio 6, as to the “ estimated increase of stock during the month of January, 1882, arrived at by taking from the total receipts of stock in January the total sales less the profits.” The fact that the prices were not affixed until after the fire was of no consequence, as the witnesses swore that the prices or values affixed were correct. The objection to the admission of the paper was not that the values were not shown to be correct, but that they had been affixed to the inventory after it had been taken, and after the fire. The objection and exception are not good.
The judgment should be affirmed, with costs.
Larremorb and Beach, JJ., concurred.
Judgment affirmed, with costs.