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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. ings and tendered upon the trial. (Remington Co. v. London Assur ance Corporation, 12 App. Div. 218, 226, and authorities there cited.) This has not been done. The plaintiffs, having the benefit of the amount paid, bring this action to collect the full amount of the policy, and a careful examination of all of the matters urged upon our attention by the appellants fails to disclose a single reason why this judgment should be reversed. The defendant insurance company appears to have done everything required by the letter and spirit of its contract, and the only reason which the plaintiffs have for complaint is that they elected to abide by the action of the appraisers instead of agreeing upon the sum of $6,000, which it is claimed the defendants were willing to concede.

The judgment appealed from should be affirmed, with costs.

GOODRICH, P. J., Bartlett, HIRSCHBERG and JENKS, JJ., concurred.

Judgment affirmed, with costs.

JOSEPHINE A. CHEEVER, Respondent, v. SCOTTISH UNION AND

NATIONAL INSURANCE COMPANY OF EDINBURGH, Appellant. . (No. 1.)

Fire insurance policy competency of a list of articles wholly destroyed - purchase

price as evidence of value limitation, imposed by the policy, to cash value misstatement of the loss, not fraudulent, does not avoid the policy.

In an action to recover upon a policy of fire insurance covering pictures, furni

ture and other personal property contained in a hotel, the plaintiff offered in evidence what purported to be lists of 500 articles which she claimed were in the hotel at the time of the fire and which were totally destroyed. The plaintiff testified that such lists had been made up within two weeks after the fire while the matters were fresh in her mind, and that, at the time they were made, she knew them to be correct. The lists stated the place of purchase and the purchase price of the articles in question, and the length of time they had

been in use. Held, that the lists were admissible, not as evidence in themselves, but as a

record of the things in detail to which the witness had testified; That the purchase price of the property was some evidence of its value; That the fact that the policy limited the defendant's obligation to the cash value

of the property at the time of the fire, and that the plaintiff's estimate of her

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

loss was based on the purchase price of the articles, did not defeat her right

to a recovery, it not appearing that the plaintiff had been guilty of fraud; That & mere misstatement of the loss, based upon an erroneous estimate of value,

would not operate to avoid the policy; that, in order to have that effect, the misstatement must be false and fraudulent.

APPEAL by the defendant, the Scottish Union and National Insurance Company of Edinburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 1st day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk's office on the 25th day of October, 1901, denying the defendant's motion for a new trial made upon the minutes.

Donald McLean, for the appellant.
Hugo Wintner, for the respondent.

jury upon

WOODWARD, J.:

The plaintiff brings this action to recover $3,000, the amount of two policies of insurance written upon certain pictures, furniture and other personal property contained in a summer hotel at Lynbrooke, Nassau county, N. Y. The pleadings in the case, in so far as any qnestion of law is involved, were identical with those in the case of Cheever v. British-American Insurance Company (86 App. Div. 333), which was before this court contemporaneously with the present appeal, and the case seems to have been tried and disposed of by the

the theory that the general denial permitted the defense of fraud and false swearing. No question was raised as to the correctness of this theory, and the jury having found in favor of the plaintiff, the defendant has certainly had all of the opportunity which it could well have to defeat the claim of the plaintiff, and this court is not called upon to be astute in discovering a method of avoiding the verdict of the jury, where it is so obviously within the scope of the defendant's contract.

The appellant urges principally that it was error to admit in evidence three memoranda, known as Exhibits “E,” “F,” and “G," which purported to be lists of the articles contained in the hotel at the time of the fire, and which were wholly destroyed. These lists were, according to the testimony of the plaintiff, made up within two weeks of the date of the fire, while the matters were fresh in

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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. her mind, and she testifies that at the time the same were made she knew them to be correct. These lists state, in a majority of instances, the place of purchase and the purchase price, with statements as to the length of time they had been in use.

The witness further explains that in making up this list for the adjuster she contemplated showing the cost price and the length of time the articles had been in use, as a basis for discounting the figures, and that she believed that twenty-five per cent discount would, on an average, gire the cash value of the articles at the time of the fire. The list of articles aggregated nearly 500, and under the rule laid down in Howard v McDonough (77 N. Y. 592, 594) we are of opinion that there was no error in admitting these lists of articles, not as evidence in themselves, but as making a record of the things in detail to which the witness had testified. (McCormick v. Pennsylvania Central R. R. Co., 49 N. Y. 303, 316.) The goods had been destroyed, and the best evidence of the articles involved in the loss, so far as appears, was the recollection of the plaintiff, immediately after the fire, of the articles contained in the hotel, with which she was shown to be familiar. She made a list of these articles, giving details of place of purchase, the time they had been in use and the cost of the same, and she testified that these articles were known by her to have been in the house at the time of the fire. These lists were not evidence that the things were in fact there; but when she testified that the lists were correct at the time she made them, and that the articles were actually in the hotel at the time, it was not error to admit the lists as having been testified to by her, and the facts given in connection with these lists formed a basis for the jury in estimating the value of the property destroyed. (Jones v. Morgan, 90 N. Y. 4, 10, 11.) The law is well established that the price paid by a party for property is some evidence of its value (Matter of Johnston, 144 N. Y. 563, 565, and authorities there cited; Latimer v. Burrows, 163 id. 7, 9, and authorities there cited), and as this was the only evidence which at the time was available, the plaintiffs riglit to recover cannot be defeated by reason of the fact that she did not give in her schedule the actual cash value of the articles at the time of the fire. While the cross-examination served to establish that the figures were not those of the actual cash value, it was brought out largely for the purpose of establishing fraud on the

App. Div.] SECOND DEPARTMENT, JULY TERM, 1903.

part of the plaintiff, and upon this issue the jury has found in favor of the plaintiff, and the evidence, as explained by the plaintiff, is sufficient to support the judgment.

The testimony of Mr. Wintner, giving a summary of the items in the lists, merely served to bring before the jury in a concise form that which had already been testified to by the plaintiff, and could have done no harm to the defendant.

While the policy limits the obligation of the defendant to the cash value of the property at the time of the fire, the mere fact that the plaintiff has filed a claim, basing her estimate of the loss upon the purchase price of the articles, cannot defeat a recovery where there is no fraud in the matter.

A mere misstatement of the loss, based upon an erroneous estimate of values, which is but the expression of an opinion, does not operate to avoid the policy; the misstatement must be false and fraudulent. (Titus v. Glens Falls Insurance Co., 81 N. Y. 410, 421.) In the case at bar the schedule, giving details as to the place of purchase and price of the goods, does not bear evidence of intended fraud, and the verdict of the jury has conclusively disposed of this contention.

We do not find reversible error; the case appears to have been disposed of under conditions which were more favorable to the defendant than it had a right to expect under its pleadings. The judgment and order appealed from should be affirmed, with costs. BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred. Judgment and order affirmed, with costs.

JOSEPHINE A. CHEEVER, Respondent, v. SCOTTISH UNION AND NATIONAL INSURANCE COMPANY OF EDINBURGH, Appellant. (No. 2.)

New trial because of newly-discovered evidence· affidavits of the witnesses or a statement that they cannot be obtained are necessary. Upon a motion for a new trial upon the ground of newly-discovered evidence, affidavits of the newly-discovered witnesses, to the effect that they are ready to swear to the facts claimed to be newly discovered, must be presented, or it must be shown that such affidavits cannot be obtained.

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. APPEAL by the defendant, the Scottish Union and National Insurance Company of Edinburgh, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Nassau on the 26th day of November, 1902, denying the defendant's motion for a new trial upon the ground of newly-discovered evidence.

Donald McLean, for the appellant.

IIugo Wintner, for the respondent.

WOODWARD, J.:

A sufficient reason for affirming the order denying defendant's motion for a new trial upon the ground of newly-discovered evidence is found in the fact that the moving papers do not contain the affidavits of the newly-discovered witnesses nor offer any excuse for their absence. The rule of practice is well established that motions of this character must be founded on the affidavits of the newlydiscovered witnesses ; that they are ready to swear to the facts claimed to be newly discovered or showing that such affidavits cannot be obtained. (Matter of Cohen, 84 Hun, 586, 589, and authorities there cited.) In the case before us there is an affidavit of an attorney that in another case certain witnesses testitied to facts which resulted in a verdict of a jury different from that in the case at bar, although both actions related to the same property, and an assistant testifies that the evidence as taken from the minutes of the other trial was as set forth in the record. There is no excuse given for the fact that the alleged new witnesses do not make affidavits ; there is no declaration that these alleged new witnesses are living and will be called on a new trial, or that they would testify the same in this action as in the one where this testimony was previously given. More than this, the case at bar was tried upon the theory of fraud and the newly-discovered evidence is merely cumulative upon this point, and it is urged only that upon the other trial it resulted in producing a less verdict, in proportion to the amount involved, than in the case at bar.

We are of opinion that there is no reason for granting a new trial in this case and that the moving papers do not warrant an inter

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