Opinion
December 29, 1959
Appeal by permission of this court from an order of the Appellate Term which affirmed judgment of the City Court of the City of New York, Kings County, entered on a jury's verdict in favor of respondents. Respondents sued to recover on a burglary policy issued by appellant. Order affirmed, with costs. No opinion. Nolan, P.J., Beldock, Hallinan and Kleinfeld, JJ., concur; Ughetta, J., dissents and votes to reverse the order of the Appellate Term and the judgment of the City Court, and to dismiss the complaint, with the following memorandum: To recover under the policy respondents were required to "keep records of all the insured property in such manner that the company can accurately determine therefrom the amount of loss". Throughout the record respondents admitted that the alleged loss could not be determined from their books. Proof of loss depended on the testimony of the burglar. The condition of the policy was not complied with ( Wolowitch v. National Sur. Co., 152 App. Div. 14, 22-23).