346 Case and Exceptions Mr. Berger: No demand being made, we will proceed before the Court. Mr. Cuff: And after the trial, we will submit findings. No jury has been demanded. Mr. Berger: The defendants at this time move to amend their bill of particulars pursuant to written notice served upon the attorneys for the plaintiff under date of February 13th, 1932, and this is the notice of motion of admission thereunder, and I ask that be embodied in the record, unless it is required that I read it into the record. 347 The Court: I have no copy of the bill of particulars. Mr. Berger: May I have the stenographer mark this and I move it be considered as part of the defendants' bill of particulars. Mr. Cuff: There is not any objection on the part of the plaintiff to that. Mr. Berger: This is the original bill of particulars, your Honor. Mr. Cuff: If your Honor please, the plaintiff was asked to serve a bill of particulars and this is our verified bill of particulars. That is the 348 plaintiff's bill of particulars. Mr. Berger: Is that in the form in which it was heretofore served on us, Mr. Cuff? Mr. Cuff: Yes. Mr. Cuff : Yes. Shall we proceed, your The Court: Yes. Mr. Cuff: Before we take the oral testimony, I would like to get in some of the written documents. Case and Exceptions 349 350 The Court: All right. Mr. Cuff: I now offer in evidence the insurance policy issued to the Crest Furniture Company, the plaintiff, by the Fulton Fire Insurance Company. I think we will have to have them marked as separate exhibits. The Court: Are all these defendants before the Mr. Cuff: All six are before the Court. (The insurance policy above referred to was received in evidence and marked Plaintiff's Exhibit 1, in evidence.) Mr. Cuff: I offer the policy issued by the Security Insurance Company. (The policy above referred to was received in evidence and marked Plaintiff's Exhibit 2.) Mr. Cuff: I now offer in evidence the policy issued by the First National Insurance Company of America, Seattle, Washington. (The policy above referred to was received in evidence and marked Plaintiff's Exhibit 3.) Mr. Cuff: I now offer in evidence the policy number 556,576, issued by the Boston Insurance Company, of Boston, Massachusetts. (The policy above referred to was received in evidence and marked Plaintiff's Exhibit 4.) Mr. Cuff: I now offer in evidence the policy issued by the Virginia Fire and Marine Insurance Company, of Richmond, Virginia, number 2773. (The policy above referred to was received in evidence and marked Plaintiff's Exhibit 5.) Mr. Cuff : I offer in evidence policy number 351 332 Case and Exceptions 1095, issued by the Milwaukee Mechanics' Insurance Company. ( The policy above referred to was received in evidence and marked Plaintiff's Exhibit 6.) Mr. Cuff: I understand that the defendants admit that on the 17th of April, that a fire occurred in the premises in the building at number 128 Fifth Avenue, and where the plaintiff's business was being conducted, not in the plaintiff's place of business, but in that building. Mr. Berger: We admit that on April 17th, 353 1931, a fire occurred in the building known as number 138 Fifth Avenue, New York City, but that no fire occurred in the premises of the plaintiff. Mr. Cuff: All right. May I ask the attorneys for the defendants to produce the letter of April 17th that was sent to the defendants, pursuant to the notice to produce served herein? Mr. Berger: Yes. Mr. Cuff: The plaintiff offers in evidence four cards that are copies of the four originals ad dressed to Fuller & Kern, Borough Underwriters, 354 Inc., W. L. Perrin & Son, and H. G. Friess. The production for the originals were demanded and the attorneys for the defendants are conceding copies may be introduced in evidence. I think I will offer the card first addressed to H. G. Friess, 80 John Street, with reference to the Fulton Fire Insurance Company, Fulton Insurance Company of New York. (The card above referred to was received in evidence and marked Plaintiff's Exhibit 7.) Case and Exceptions 355 Mr. Cuff: I now offer one addressed to Fuller & Kern, which relates to the Boston Insurance Company, the Virginia Insurance Company, and the Security Insurance Company, as Fuller & Kern I understand represents all three of those companies. (The card above referred to was received in evidence and marked Plaintiff's Exhibit 8.) Mr. Cuff: I offer in evidence the one addressed to the Borough Underwriters, Inc., relating to the First National Insurance Company. 356 (The card above referred to was received in evidence and marked Plaintiff's Exhibit 9.) Mr. Cuff: I offer in evidence the one addressed to W. L. Perrin & Son, relating to the policy of the Milwaukee Mechanics' Insurance Company. (The card above referred to was received in evidence and marked Plaintiff's Exhibit 10.) Mr. Cuff: Will it be conceded that these were received by the parties to whom they were addressed, the representatives of the insurance companies referred to in the complaint herein? Mr. Berger: We are making no point of that. I don't know whether they were received or not, 3:57 but whether they were or not we make no objection to the reception in evidence of these four cards. I haven't any doubt that they were received but I don't know that to be the fact. The Court: You concede that these are copies of the cards that were mailed ? Mr. Cuff: In the general course of business. The Court: To the people to whom they are addressed? Mr. Berger: I cannot concede that because I don't know that to be the fact. 358 Case and Exceptions Mr. Cuff : Will you examine this, because I like to prove they were received; otherwise, I will have to call the man who received these cards. The Court: Yes. Mr. Cuff : I might have to call the one who mailed them. Mr. Berger: I don't want to do that. I do not object to their being received in evidence. I do not know as a fact whether they were or were not received. The Court: Let us prove it. 359 Mr. Cuff: That is what I will have to do. Mr. Berger: We will concede that due notice of the occurrence of the fire in the proper and usual way was made upon the defendants. Mr. Cuff: And that it was given on the 17th of April, 1931. Mr. Berger: I say due notice. Mr. Berger: Very well. I will concede on or about the 17th day of April, 1931, such notices were received by the defendants. Mr. Cuff: All right. Will you let me have 360 the original proofs of loss, Mr. Berger? If your Honor please, this may be a little bit out of order to put the proofs of loss in, but when the witness takes the stand, we would like to have him refer to the proofs of loss whenever it may become necessary. Mr. Berger: I have here six papers that I am handing to Mr. Cuff, but the one on the Fulton Fire Insurance Company has not attached to it, the schedule, that the other five have. That was there when the plaintiff served it upon the defendants, but inadvertently it is not here today, |