General

Morris Rosenfield, Respondent, v. The Ætna Accident and Liability Company, Appellant

171 A.D. 891·New York Supreme Court, Appellate Division·1915·NY

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Opinion

Morris Rosenfield, Respondent, v. The Ætna Accident and Liability Company, Appellant. [MAJORITY] Judgment reversed and new trial granted, with costs to appellant to abide event. Held, property on which actual loss could not be accurately determined from plaintiff’s books and accounts is excepted from the policy and not insured. Defendant’s examination of plaintiff as authorized by the policy, after the loss, even if defendant then knew that little if any of the loss could be shown by any of plaintiff’s books or accounts, was not a waiver of the condition against liability for loss not so proved. (Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12.) It was error to submit to the jury the question as to whether defendant had waived such condition of the policy. All concurred.