
    A & C Toy Corp., Respondent, v. Metropolitan Casualty Insurance Company of New York, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 26, 1958.
    
      
      Joseph Haskell and Emmet L. Holbrook for appellant.
    
      Nathan Gross for respondent.
   Per Curiam.

Action on a policy insuring against burglary. The policy in suit is a renewal of a policy issued in 1952. At that time the assured was a tenant of three floors in the building it now owns. It then did not have possession of the stairways or landings and the policy excludes merchandise located in these places. The policy in suit makes no change in this respect. The merchandise stolen was taken from such a landing. Ordinarily this would preclude recovery. Plaintiff claims a waiver of this provision of the policy. It is claimed that the waiver arose in the disposition of an earlier burglary of merchandise stored in the same place after plaintiff had acquired the entire building. Plaintiff’s proof of waiver was not satisfactory and defendant was not allowed to make its full proof on this point. Furthermore, on a second trial it might be well to point out that conversations on this subject between defendant’s representatives and plaintiff’s insurance broker would not be hearsay.

The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.

Concur — Hecht, J. P., Steuer and Tilzer, JJ.

Judgment reversed, etc.  