Utica Sanitary Milk Company, Respondent, v. Casualty Company of America, Appellant

Utica Sanitary Milk Company, Respondent, v. Casualty Company of America, Appellant. Appeal from a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 11th day of March, 1912, and also from an order entered on the 10th day of December, 1911. Order affirmed, without costs. J udgment reversed and new trial granted, with costs to appellant to abide event, unless the plaintiff shall within thirty days stipulate to reduce the judgment by the sum of $175 as of the date of the rendition thereof, in which event the' judgment is modified accordingly, and as so modified is affirmed, without costs of this appeal to • either party. All concurred, except Kruse, J., who dissented and voted for reversal in a memorandum. [DISSENT — Kruse, J. (dissenting):] Kruse, J. (dissenting): In view of the finding that plaintiff failed to give immediate notice of the accident, as the policy required, and that the condition was never waived by the defendant, I do not see how this judgment can stand. Furthermore, I think that upon the undisputed proof the plaintiff is not entitled to recover.. Merely because Hatfield was the treasurer and general manager of the plaintiff, and also acted as agent for the defendant company, did not, as it seems to me, reheve the plaintiff from giving the notice required by the policy; nor was the plaintiff' relieved from giving such notice because he believed (as the ti'ial court finds) that, no claim would be made on account óf the accident. I, therefore, vote for reversal. _