
    The Aetna Line Insurance Company, Appellant, v. Duparquet, Huot & Moneuse Company, Respondent.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Evidence — Best and secondary evidence — When secondary evidence is admissible — Sufficiency of secondary evidence — Copies of instruments.
    Judgment — Rendition—At particular stages of the action — Judgment on dismissal.
    In an action brought by an insurance company to recover premiums claimed to be due to it under the terms of its policies, where the original policies had been destroyed and it appeared that it was the custom of the company to issue policies according to the applications therefor and that the original applications for the policies in question were at the plaintiff’s home office in Hartford, copies of such policies, offered by the plaintiff without any evidence that they conformed to the applications, were not competent evidence in support of the plaintiff’s cause of action; and judgment of dismissal should have been rendered, without prejudice to a new action, but not judgment absolute in favor of the defendant.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, first district, borough of Manhattan, in favor of the defendant, after a trial had before the court without a jury.
    Winter & Winter, for appellant.
    Hollander & Bernheimer (Clarence G. Bernheimer, of counsel), for respondent.
   Giegerich, J.

The action is brought for additional premiums alleged to be due on three policies of insurance, by which the plaintiff insured the defendant against liability for damages on account of injuries suffered by employees or others during the terms of said policies. The premium paid was based upon an assumed aggregate compensation which it was calculated would be paid to the employee during the period. The policies contained a further provision that, if the compensation actually paid should exceed the sum estimated, then the assured should pay an additional premium; while, if less, the company would return a portion of the premium. The action is brought upon the theory and' upon tbe claim that the compensation actually paid greatly exceeded the amount estimated as the basis for the premium which the company received at the time the policies were issued. There was a sharp issue upon the trial as to what employees were covered by the policies and as to what was embraced under the word “ compensation ” used in the policies; whether the compensation of officers and the office staff and tho like, or whether only outside employees. This issue was presented in the pleadings, as well as litigated upon the trial. It therefore became important that the exact forms of the policies should be before the court. Upon the trial it was stated by the defendant’s counsel, in response to a notice to produce the policies of insurance in suit, that the originals had been destroyed by the defendant after the expiration of the periods specified in them. The plaintiff produced what it claims were copies. Its own witness, Phelan, stated that it was the practice of the company to issue policies according to the applications submitted by the one seeking insurance and that the original applications were sent on from the Hew York office, from which these policies were issued, to the home office of the company at Hartford. These original applications were not produced upon the trial, nor was there evidence by anyone who had made a comparison that either the alleged copies of the applications retained in Hew York, or the alleged copies of the policies which were produced at the trial, conformed to the original applications in Hartford. In the absence of these prerequisites, the admission of these papers in evidence was unwarranted (Nichols v. Kingdom Iron Co., 56 N. Y., 618); and, as proof of the plaintiff’s cause of action rested entirely upon them, there was thus no legal proof of the same. In this view, the justice should have rendered judgment that the action be dismissed, without prejudice to a new action (Mun. Ct. Act, § 248); but instead of doing so he gave judgment absolute in favor of the defendant. This he clearly had no right to do; and, since we must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits (Mun. Ot. Act, § 326), we think that the judgment should be modified by directing that the dismissal be without prejudice to a new action and affirmed, as so modified, without costs of this appeal to either party.

Judgment modified by directing that the dismissal be without prejudice to a new action and, as modified, affirmed, without costs of this appeal to either party.

Gildebsleeve arid Eblangeb, JJ., concur.

Judgment modified and, as modified, affirmed, without costs of this appeal to either party.  