(91 Hun. 217.)

#### WEIR v. AETNA INS. CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Insubance—Action on Policy—Reasonable Doubt.

Where an insurance company defends an action on a policy on the ground that the fire originated through act or design of plaintiff, it need' prove such defense only by a preponderance of evidence, and not beyond reasonable doubt, as is required in criminal cases.

Appeal from circuit court, Westchester county.

Action by Jane Weir against the Aetna Insurance Company on a fire insurance policy. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Benno Loewy, for appellant.

C. H. & J. A. Young & Terry, for respondent.

BROWN, P. J.

This action was brought to recover upon a policy •of fire insurance issued by the defendant upon the plaintiff’s stock and fixtures in a store occupied by her at New Rochelle. Among other defenses, the answer alleged that the fire which caused the loss originated through the act, design, or procurement of the plaintiff, and the evidence offered to establish this, defense was sufficient to permit the jury to have found that the fire was the result of the act or procurement of the plaintiff. The defendant’s counsel *217requested the court to charge the jury that, to sustain the defense, the company was not required to prove commission of the offense beyond all reasonable doubt, as required in a criminal proceeding, but that it was the duty of the jury to find for the party in whose favor the evidence preponderated. This request was refused, and the defendant took an exception.

Prior to making the request, the court had charged the jury as follows:

> “I say to you, gentlemen, that if, under the evidence in this case, you are •satisfied that this woman has made a false claim, has been guilty of fraud, has exaggerated her claim, has sworn falsely as to the value of the property, she cannot recover. Now, she must not set fire to this property herself, even though it was full of goods, and there was no other fraud about it. You see at once that there could be no living in a, society where a person assured could set fire to the property, and then go to the insurance company and get money for it. That would not do. But it is provided in the policy that any fraud vitiates it; and I say to you that it is a fraud of the most extensive, far-reaching description for a woman to set fire to her own property. If this plaintiff set fire to this property, if she incited or permitted another to do it, beyond her immediate knowledge, she cannot recover one cent, no matter what her injury was.”

The request correctly stated the law (People v. Briggs, 114 N. Y. 56, 20 N. E. 820); and as the jury had not been instructed as to the burden of proof, nor as to the quality and degree of testimony, which it was essential for the defendant to produce in order to establish the defense, we are of the opinion that it was entitled to have the jury instructed as requested. The court’s refusal to charge this request was therefore an error, for which the judgment must be reversed, and a new trial granted, with costs to abide the event.

DYKMA2ÑT, J., concurs.

PRATT, J. (dissenting).

Both parties appointed appraisers, and ■a time was set for their meeting. Plaintiff’s appraiser attended, and waited a reasonable time. When defendant’s appraiser appeared, later in the day, it is conceded by all parties that he did nothing towards appointing a future meeting; and one witness testifies that, when his attention was called to that matter, he said “his time was too precious.” He made an estimate of loss in company with plaintiff, and made an agreement to settle, which defendant repudiated. On these facts, the circuit judge left it to the jury to say whether defendant had waived its right to a joint appraisal. The jury found such a waiver, we think correctly.

We think the jury were right in finding the company waived their right to replace the goods. More than six weeks elapsed after the notice of loss before plaintiff disposed of the goods. Plaintiff could not be held to wait indefinitely for defendant to replace, or give notice of an intention to do so.

An objection is now urged to the admission of the proofs of loss.

They were produced by the company upon notice, and defendant’s ■counsel insisted that, having thus procured and examined them, *218plaintiff was bound to put them in evidence. Plaintiff consented, and the court ordered them in evidence. Later, defendant claimed the admission was error. If so, it was not one of which defendant could complain. No motion was made to strike out the proofs. Moreover, an examination of the record shows that the only use made of the proofs was a memorandum by which to refresh the memory of the witnesses by whom the proofs were prepared, for which purpose they were competent. Howard v. McDonough, 77 N. Y. 592. The amount of the verdict is no greater than warranted by the evidence.