
    Ignatz Rosenberg, Respondent, v. People’s Surety Company of New York, Appellant.
    First Department,
    November 4, 1910.
    Insurance — condition precedent to recovery on policy of burglar insurance —failure to keep books showing loss — secondary evidence — copy of document — res inter alios acta—charge — damages — appeal from judgment only.
    There can be no recovery on a policy of burglar insurance which as a condition precedent to recovery provides that the insurer shall not be liable if the books and accounts of the assured are not so kept that the actual loss may be accurately determined therefrom if he failed to keep such books and accounts.
    In an action on such policy the assured should not be allowed to read in evidence a typewritten carbon copy of a written list of the articles which he claims were stolen. The written list should be produced or accounted for.
    Nor should the plaintiff be allowed to prove that burglars had entered other . stores in the vicinity by means of transoms over the doors in order to show that his own store was entered in the same manner.
    It is error for .the court to charge that if the jury find for the plaintiff it must be for a stated sum where the actual loss of the plaintiff is a question of fact.
    On appeal from a judgment only the appellate court is limited to a review of questions of law raised by exceptions, although there was a motion for a new trial and an order entered denying the same.
    Appeal by the defendant, the People’s Surety Company of New York, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1908, upon the verdict of a jury.
    
      F. Sidney Williams, for the appellant.
    
      Harry G. Anderson, for the respondent.
   Scott, J.:

Appeal by defendant from a judgment upon a policy of burglar insurance.

The policy upon which it is sought to recover contained certain conditions which it was agreed were to be construed as conditions precedent to any recovery. Among them were the following: That the company should not be liable (1) “ Unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom; ” and (4) “ if the books and accounts of the assured are not so kept that the actual loss may be accurately determined therefrom.” Although a motion fora new trial was duly made after the rendition of the verdict, and an order entered denying such motion, the defendant appeals from the judgment only, thus limiting, us to a review of the question of law raised by exception. There is perhaps some evidence, although of the most unconvincing character, that the premises showed visible marks of violence, used in making entry or exit, but there is absolutely no evidence that the assured kept such books and accounts as are called for by the policy. On the contrary, all the evidence is that he did not. As a matter of law, therefore, the complaint should have been dismissed upon this ground. Motions to that effect were duly made and their denial excepted to. The plaintiff undertook to make up his proof of loss by estimating from the marks upon certain empty paper wrappers and pasteboard boxes the extent and value of their contents which, as he alleged, had been stolen. From these marks he called off amounts and values to his sister-in-law, who made a list .of them. This list was given to an insurance broker who made one typewritten copy, which was attached to the proofs of loss, and one carbon copy. He then returned the original list to plaintiff. On the trial the plaintiff was allowed to use and read in evidence the carbon copy, without producing or accounting for the original list of which the carbon purported to be a copy. This was clearly erroneous, even if the original list, if produced, would have itself been admissible, a question which we are not now called upon to meet. It'was claimed that the burglar entered the plaintiff’s store by means of the transom over the door, and proof was received that other stores on the same street had been thus entered at various times. Of course, this evidence was wholly irrelevant, and did not tend to prove that a burglary had been effected upon plaintiff’s premises, as he claimed. Its reception was error, and we cannot say that it did not serve to induce the verdict. Finally the court took from the jury all questions as to the amount of the plaintiff’s loss, instructing then) that if they found for plaintiff at all it must be for a stated figure. This again was erroneous, for the plaintiff’s loss, if he suffered one, was far from having been exactly shown by the proofs of loss and the evidence upon the trial. Even if tiie jury had been of opinion that the plaintiff was entitled to recover something, the amount of his proved loss involved a question of fact upon which, on the evidence, there might well have been a difference of opinion. These errors were all properly called to the attention of the court by' timely7 objection and exception. They are, therefore, before us for consideration and require a reversal of the judgment.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Clarice, Miller and Dowling, JJ., concurred

Judgment reversed, new trial granted, costs to appellant to abide event.  