
    Herman Katzenstein, Appellant, v. The Fidelity & Casualty Company, of New York, Respondent.
    (Supreme Court, Appellate Term,
    November, 1905.)
    Insurance — Forfeiture of policy — Change of risk — Notice and proof of loss — Burglar insurance.
    In an action upon a policy of insurance against direct loss by burglary, larceny or theft, noneomplianee with conditions contained in the policy that the risk be not materially changed without the company’s written consent, and that the assured give' immediate notice of any loss and forthwith present a claim specifying particulars, coupled with failure to show that the lost articles had been feloniously abstracted, will defeat a recovery.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, twelfth district, borough of Manhattan.
    
      Black, Olcott, Gruber & Bonynge, for appellant.
    Eíadal, Carrere & Jones, for defendant.
   MacLean, J.

Missing certain articles of value from Ms house, the plaintiff, on January 30, 1905, resorted to a claim upon a policy of insurance against “ direct loss by burglary, larceny or theft,” issued him by the defendant, upon certain conditions, inter alia, that the assured upon loss occurring give immediate notice to the company, or its agent, and to the police; that the assured present forthwith a claim exhibiting certain specified particulars, and that the policy be void if the conditions or circumstances of the risk be materially changed without the written consent of the company. Evidence of noncompliance with each of these conditions was not wanting while, beyond the fact of their disappearance, the case was bare of showing that the articles had been feloniously abstracted. In July of 1904, in anticipation of renovating the house, madame packed up and put away many things including an ivory piece and a dozen spoons. There came in plasterers, painters, carpenters and the lighting people. The family remained in the house for a time, later slept in an apartment, though taking meals in the house, later left it in the occupation of the workmen and two servants, the lady and daughter to visit in Cleveland and the husband to go south. Returning just before January, 1905, Mrs. Katzenstein discovered right away that an electric enunciator was not in the closet where it belonged; that three automatic burners (which had been taken off for the new electric lights) were not about and, in the first days, that she could not find the ivory piece or the spoons. ETo notice to the company of the disappearance of these things appears before the presentation of the meagre “ proof of loss ” at the end of January, no information to the police before March. More noteworthy still is it that no intimation was given of the material changes in the conditions and circumstances of the risk, which changes, if known, might have caused the company to exercise its reserved option to cancel the policy upon tendering the unearned premium. The testimony of the plaintiff and his witness made out no case against the defendant and the complaint was rightly dismissed.

Scott and Gildersleeve, JJ., concur.

Judgment affirmed, with costs.  