Opinion
July 11, 1967
MEMORANDUM BY THE COURT. Appeal from a judgment for damages under an automobile theft policy. The purported notice of cancellation of the policy was properly excluded, not because the witnesses Cook and Roehr were not in the employ of the insurer at the time of the purported cancellation, for they could have subsequently acquired knowledge of the company's internal procedures in the past, but because no foundation was laid for its reception by their testimony or that of some other witness that "it was the regular course of [the insurer's] business" to record cancellation notices and evidence of issuance and mailing thereof in the form of the exhibit proffered, "at the time * * * or within a reasonable time thereafter." (CPLR 4518.) The award improperly included $70 damages for loss of use not specially pleaded. Judgment modified, on the law and the facts, so as to reduce the amount thereof to $1,111.23, with interest and costs, and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by the court.