Danerhirsch v. Travelers Indemnity Co.

Smith, J.: This is an action to recover upon a policy of burglary insurance. The only question submitted to the jury was the question of damages. The policy contained this provision: “The company shall not be liable for damages to the premises, furniture, fixtures, safe or vault therein * * * unless books of accounts are kept by the assured and the company can accurately determine therefrom the actual amount of loss or damage sustained.” I can read this provision in no other way than as a condition subsequent, rendering the policy void if such books of account are not kept. It does not prescribe how proof shall be made in an action upon the policy, or what proof may be necessary to sustain such an action. It simply [208] makes ineffective the policy if such books are not kept as will show accurately the extent of the plaintiffs’ loss. That such books were not kept seems to be admitted, and if the defendant had pleaded the breach of this condition subsequent, such a fact would have been a complete defense to the action. But such defense is not here pleaded. The defendant made a motion to dismiss the complaint upon the ground that such books were not kept, and the plaintiffs’ counsel answered that motion by asserting the fact that such defense had not been pleaded and no amendment was sought to be made to the answer. In Wolowitch v. National Surety Co. (152 App. Div. 14) the defense was distinctly pleaded. In Pearlman v. Metropolitan Surety Co. (127 App. Div. 539) the defense was specifically pleaded. Inasmuch as the condition requires the plaintiffs to keep their books subsequent to the making of the contract in such form as to show accurately the loss sustained, I am unable to see how it can be construed other than as a condition subsequent. The defendant further urges reversal upon the ground that the proof shows false representations. The policy was written upon the 1st of July, 1919. One of the representations made, which is made a part of the policy, was that there had been no prior losses from burglary within five years, except a loss of $500. The defendant relies upon the statement of the plaintiffs to the effect that they had had other losses from 1910 to about 1915 by reason of burglary. All of these burglaries may well have been suffered prior to July 1, 1914, even under this admission by the plaintiffs, and as there being no other proof of these prior burglaries, the defense of false representations has not been established. The determination should be affirmed, with costs. Clabke, P. J., Laughlin, Dowling and Gbeenbaum, JJ., concur. Determination affirmed, with costs.