by allowing the demand for the admissions. Frequently it will be for the best interests of justice to strike out requests for admissions, even though on their face, taken in conjunction with the pleadings, they appear to be matters that should be the subject of admission. For in some cases what might seem, from the pleadings and demand, to be a fact that should be admitted without putting the adversary to the trouble and cost incident to proof may be an admission that with other evidence introduced at the trial would place a fact in a far different light than the party admitting had intended. Again, a demand may call for an admission of a fact which as a matter of law would be inadmissible on a trial, and it goes without saying that section 323 never contemplated such a condition of affairs. Nor did this section contemplate that a party might require an adversary to admit a fact to ascertain the truth or falsity of which would put that adversary to trouble and expense. It is contingencies like these that are and will be the stumbling blocks to the application of this section, and that are keeping and will keep litigants from admitting facts other than those that will justify but one interpretation and facts that are known or are easily ascertainable. [3] This section may, and probably will, be abused in many instances, as is the case with rule 113. This rule 113, as I have had occasion to remark in a late decision, seems to have led to a practice of embarking on so-called "fishing excursions"-attempting even to go into the merits of counterclaims, which are outside the provisions of that rule. So with section 323, which, unless carefully applied, will have the same tendency and will open a way for some to place upon an opponent the burden and expense necessary to prove their own case. Section 323, to my mind, provides only for a demand for an admission of facts to which one's adversary has no denial in any shape or form, and which are known to him, or the truth or falsity of which are easily ascertainable by him. The purpose of the section, as well as the general scope of the new Practice Act and Rules, is to simplify the issues, shorten the trial, and save time and expense in matters that can be proven, but whose proof will necessarily impose labor and expense on the party seeking to prove them which in justice should not be imposed. In the present case we have what probably is to date the most comprehensive notice and demand made under section 323. This notice covers 115 folios, and contains 226 separately numbered paragraphs. It apparently covers to a great extent the field of the defendant's proof. To allow all these demands would be calling upon the plaintiff to prove his adversary's case, to disprove his own, and at the same time to pay all the expense. Some of the demands, if allowed, would call upon plaintiff to go to trouble and expense to acquire the knowledge sufficient to admit facts that are peculiarly within the knowledge of the defendant itself; some call for what, in so far as the papers before me show, is purely opinion evidence, or evidence that would be inadmissible at a trial. Others of the demands call for admission of what, for a better term, we shall call “half fact," which, standing alone, might have to the court or jury an entirely different (195 N.Y.S.) meaning than if the whole fact were presented. Surely it may not be held that this plaintiff should be directed to comply in full with such a notice. Section 323 requires not only a judicial, but a judicious, application. It should, as I have already indicated, apply to admissible facts; to an entire fact, not a half fact; to facts the truth or falsity of which the party may ascertain without much trouble or expense, and without basing them on opinion. I have gone over the many demands in the present notice, and believe that a judicial and judicious application of section 323 calls for the granting of this motion only in part. It would be unreasonable to place such a burden upon the plaintiff as defendant's demands would impose. All those demands that call for questions of opinion, all that are not definitely ascertainable by the plaintiff, all that call for “half a fact," and all that would be inadmissible as evidence at the trial should be stricken out. An examination before trial would be more to the point on many of the items. As to the first 53 items the parties should stipulate the essential parts of the various communications. If they are unable to do so, then I shall grant these items; but the plaintiff may, in addition of the quoted parts, include in its admissions what it claims are the other essential parts. In addition to the above the following items are allowed: Nos. 51, 52, 53, 107, 143, 144, and 192. The balance of the items are such as the plaintiff should not, at least at this time, be called upon to admit. The greater number of them call for facts peculiarly within the knowledge of defendant, or based upon reports made to it. Motion granted as indicated. Settle order on notice. Ordered accordingly. (118 Misc. Rep. 674) BROOKLYN CLOTHING CORPORATION v. PEOPLE'S NAT. FIRE INS. CO. SAME v. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK. (Supreme Court, Kings County. May, 1922.) I. Insurance 115(3)-Bailee has insurable interest in goods in his possession. A bailee may insure goods in his possession in his own name and to their full value, being so situated that he might be liable for the loss of the goods, if destroyed by the peril insured against. 2. Bailment l-Bailee's liability for loss of goods extends to loss from riot or commotion. A bailee's liability for loss of goods in his care extends to loss from riot or commotion as much as from any other risk against which he might forefend by whatever reasonable care required. 3. Insurance 164(2)—Policy issued to manufacturer held to cover full value of goods in its possession as bailee, and not merely its interest therein for work done. Policy insuring clothing manufacturer against loss by "riot and commotion," covering the manufacturer's building and the contents therein owned by it, and sold, but not removed, and also the manufacturer's interest in and its legal liability for similar property held by it "in trust or on commission or in joint account with others," held to cover the full value of the goods in the manufacturer's possession as bailee, and not merely the amount of its personal interest therein for the value of the work done. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. Judgment 180-Rule of civil practice providing for summary judgment in action to recover "debt" held applicable to action on insurance policy after loss has occurred. Rules of Civil Practice, No. 113, providing that answer may be stricken and summary judgment rendered in an action to recover a "debt" or liquidated demand arising in' certain cases, held applicable to an action on policies insuring insured against loss by riot and commotion after loss has occurred thereunder, since the liability after the loss has occurred becomes an absolute liability, and therefore a "debt." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Debt.] Actions by the Brooklyn Clothing Corporation against the People's National Fire Insurance Company and against the Fidelity Phenix Fire Insurance Company of New York. On plaintiff's motions for summary judgments. Motions granted. Richards, Smyth & Conway, of Brooklyn (Albert C. Conway, of Brooklyn, of counsel), for plaintiff. Samson Selig, of New York City, for defendant. FAWCETT, J. These are motions for summary judgments under rule 113 of the Rules of Civil Practice. The actions are to recover under policies of insurance against loss by "riot and commotion." Plaintiff's clothing manufacturing establishment was invaded by a group of individuals, and, among other acts of disturbance, acids and chemicals were spilled upon a number of coats upon which the plaintiff was working for the owners. For the amount of the value of the work done $250.80 liability was conceded, and that amount was duly tendered, but for the value of the coats themselves, or the damage thereto, aggregating $791, liability was disputed, on the contention that the policy, or rather the policies, for both are the same, was limited to the insurance of plaintiff's personal interest in the goods. [1] In terms the insurance was on the building and "on the contents therein owned by the assured, or sold, but not removed; also on his [their] interest in and his [their] legal liability for similar property held by him [them] as follows, viz.: In trust or on commission, or in joint account with others, or on storage or for repairs." A bailee may insure goods in his possession in his own name and to their full value. There is a real value to protect, and he is so situated with reference to it that he might be liable for the loss, if destroyed by the peril insured against. His actual personal interest and his possible legal liability for the owner's loss make up an insurable interest; the latter being recognized in the words "in trust" (which are in the above quotation from the policies in the present case). Herkimer v. Rice, 27 N. Y. 163; Riggs v. Commercial Mut. Ins. Co., 125 N. Y. 7, 12, 25 N. E. 1058, 10 L. R. A. 684. 21 Am. St. Rep. 716; Cone v. Niagara Fire Ins. Co., 60 N. Y. 619; Stillwell v. Staples, 19 N. Y. 401. [2, 3] So far the parties are in accord as to the law. And had there been but the words "in trust" used in reference to the goods, as in the cited cases, they would still be in accord. There is, however, the word "interest," not present in these cases, and defendant urges that the effect thereof was to restrict the liability to the insured's own interest, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes. (195 N.Y.S.) that is, its limited personal interest for the value of the work done, as distinguished from its technical insurable interest to the full value of the goods, as that insurable interest is defined in the cases. The question is whether the reference to interest was for strict inclusion of the personal interest, with strict exclusion of the insurable interest. I think not. Doubt disappears when it is noticed that the term “interest" is used in direct conjunction with the term "legal liability for," so that the full phrase reads (and the policy covers) the "interest in and legal liability for" the goods "in trust." The bailee's legal liability for loss of the goods in his care extends to loss from riot or commotion as much as from any other risk against which he might forefend by whatever reasonable care required, and since this legal liability is recognized and insured against by these policies in express words, the entire phrase is, as to meaning, controlled thereby. Read as a whole, the phrase is an accurate expression of the rule of the insurer's liability for the insured's full insurable interest, declared in the authorities. And if this construction were matter of doubt, and the terms used consonant as well with the contention of the defendant, an insurable contract must be construed against the insurer, because the insurer wrote the contract, and that interpretation adopted which is most favorable to the insured. Goldman v. Insurance Co. of North America, 194 App. Div. 266, 267, 185 N. Y. Supp. 210; Preston v. Ætna Insurance Co., 193 N. Y. 142, 144, 85 N. E. 1006, 19 L. R. A. (N. S.) 133. [4] The minor contention of the defendant that rule 113 does not apply, because the claim is not on a debt or liquidated damage, is unsound. After loss has occurred under a policy, the liability, theretofore conditional, becomes an absolute one; that is to say, a debt. New York Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424, 429. In Peninsular Transportation Co. v. Greater Britain Ins. Corporation (Sup.) 193 N. Y. Supp. 885, rule 113 was applied in an action for an insurance loss, apparently without question. Motion for judgment in each case is granted. GUNSBERG v. GUNSBERG. (Supreme Court, Appellate Division, Second Department. May 26, 1922.) Appeal and error 203(3)-Objection to improper evidence too late on appeal. It was too late to raise the question on appeal that testimony of defendant was received in violation of Code Civ. Proc. § 831 (Civil Practice Act, § 349), such evidence being offered and received without objection on the part of plaintiff, and plaintiff being given a fair trial and every opportunity to make out a defense. Action by Sophie Gunsberg against Nathan L. Gunsberg. Order denying plaintiff's motion to set aside verdict and for a new trial unanimously affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes PER CURIAM. Order denying plaintiff's motion to set aside the verdict and for a new trial unanimously affirmed, without costs. The testimony of defendant alleged to have been received in violation of section 831 of the Code (section 349 of the Civil Practice Act) was not necessary to prove the charges made. Plaintiff testified on her direct examination as to the same subject-matter. It further appears that all of the so-called improper evidence was offered and received without objection on the part of plaintiff, and presented to the jury with her acquiescence. It is too late to raise the question on appeal, especially in view of the situation disclosed by this record, where it appears that plaintiff was given a fair trial and had every opportunity to make out her defense. See Valentine v. Valentine, 87 App. Div. 156, 84 N. Y. Supp. 37; Lunham v. Lunham, 133 App. Div. 215, 117 N. Y. Supp. 396. HIGGINS v. FOX. (Supreme Court, Appellate Division, Second Department. April 28, 1922.) Landlord and tenant 164(1)—Tenant assumes risk of condition of premises, in absence of inspection or express covenant. Where there was no express covenant of warranty contained in the lease, and lessee did not examine the premises, he assumed the risk of the condition of the premises. Action by Ames Higgins against Robert Fox. Judgment for defendant, and plaintiff appeals. Judgment and order reversed on the law and the facts, and new trial ordered. Argued before BLACKMAR, P. J., and RICH, JAYCOX, MANNING, and KELBY, JJ. PER CURIAM. Judgment and order of the City Court of New Rochelle reversed upon the law and the facts, with costs, and a new trial ordered. It was incumbent upon defendant to examine the premises prior to the execution of the lease, and the responsibility of doing this rested upon him. Franklin v. Brown, 118 N. Y. 110, 115, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744. There was no express covenant or warranty contained in the lease, and under the circumstances defendant assumed the risk of the condition of the premises. Zerega v. Will, 34 App. Div. 488, 490, 54 N. Y. Supp. 361. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |