#### Emily K. Duschenes, Respondent, *v.*The National Surety Company of New York, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Insurance — loss from " burglary, theft or larceny ” — proof necessary in action on policy.

Where a policy of insurance provides that the insured shall produce direct and affirmative evidence that the loss of articles for which claim.is made was due to burglary, theft or larceny, and that the mere disappearance of such articles shall not be deemed such evidence, no recovery can be had on the policy on proof that plaintiff while in her hotel apartment alone with her husband placed a piece of jewelry in a box on a bureau, that next morning her husband left before she was awake and that some time -after returning to her apartment from breakfast the jewelry was missing, and after a thorough search neither it nor the box in which she had placed it could be found.

Appeal by the defendant from a judgment of the Municipal Court of the city of Rew York, borough of Manhattan, seventh district, rendered in favor of the plaintiff in an action on a policy of insurance.

Joseph L. Prager, for appellant.

Louis E. Felix, for respondent.

Lehman, J.

The plaintiff has recovered judgment against the defendant for the value of a piece of jewelry which she claims was stolen, from her apartment in a hotel. The plaintiff’s testimony is to the effect that she occupied two rooms in a hotel; that she wore this piece of jewelry the day before the alleged theft and placed it in a plush case and then placed the case in a jewelry box on the bureau. Robody was in the room at this time except her husband. The next morning her husband left before plaintiff was awake. On that morning the plaintiff took breakfast in the dining-room of the hotel. Some time after she returned to her apartment *233she realized that she was not wearing the jewelry, and, remembering that she had not put on the jewelry that morning, she went to her jewelry box and found the piece of jewelry, for which she claims, missing. She called her maid who was working in the next room and she searched her apartment thoroughly but failed to find the jewelry or the box in which it was contained. It appears that plaintiff was accustomed to wear the jewelry or to carry it in the box upon her person. The evidence negatives any -probability that if the plaintiff was carrying the box on her person that morning it could have escaped from her person. The defendant had insured the plaintiff against direct loss by “ burglary,, theft or.larceny,” and her contention now is that the evidence produced by her is sufficient to show that the piece of jewelry was lost by theft or larceny. I am unable to find that the circumstances shown in this case can logically be distinguished from the circumstances shown in the cases of Schindler v. United States Fidelity *&*Guaranty Co., 58 Misc. Rep. 532, and Gordon v Ætna Indemnity Co., 116 N. Y. Supp. 558. At most the plaintiff has submitted evidence which shows that the piece of jewelry has disappeared under circumstances that might perhaps permit an inference that it was stolen. The policy, however, provided that: “ The assured shall also produce *direct*and *wfpmative*evidence that the loss of the article or articles for which claim is made was due to the commission of a burglary, theft or larceny; the disappearance of such article or articles not to be deemed =ueh evidence.” While the policy is to be construed liberally in favor of the assured, I do not think that we can affirm this judgment without entirely disregarding this clause of the policy. No direct or affirmative evidence has Ven, presented of any theft or larceny. We are asked to init r theft or larceny merely from the disappearance of the article from a place to which nobody but the plaintiff had lawful access. The purpose of the insurance was to provide only against loss by burglary, theft or larceny, and the liability of the defendant was confined to reimbursement for such loss. In order to protect itself from claims under the policy for loss of the articles covered by the policy by reason *234of some other cause than burglary, theft or larceny the company has provided that the insured must produce not circumstantial but direct and affirmative evidence of the wrong. Parties may be mistaken in their recollection of where they placed a piece of jewelry, but they are not apt to be mistaken in recollection as to matters directly and affirmatively showing a felony, and the defendant could reasonably provide that there could be no recovery unless in addition to the testimony of the disappearance of the jewelry the insured should produce testimony of a direct and affirmative kind that there has been a felony.

Judgment should,- therefore, be reversed, with costs, and complaint dismissed, with costs.

" Seabury and Page, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.