The action is upon a policy of burglary insurance. The sole question presented is one of fact as to whether the plaintiff made proo'f that his loss occurred through theft. The jury found for the plaintiff. The verdict was set aside by the trial justice, who directed a- judgment for the defendant. This judgment was in turn reversed by the Appellate Term and the verdict reinstated. From this determination of the Appellate Term this appeal has been taken by permission. The plaintiff’s claim substantially is that in the middle of May a diamond stone in a ring worn by his wife had become loose in the setting; that he removed it from the setting and his wife wrapped it up -in some tissue paper, inclosed it in an envelope and put it in a cereal can upon the shelf in the kitchen. The setting apparently was not placed with the stone, although it was the intention of the parties to have the stone reset at some early opportunity. The setting, was kept in a button can. The evidence is to the effect that in the latter part of May the plaintiff’s father-in-law was there; that he noticed the absence of the ring from his daughter’s hand and asked about it; that the .parties then went into the kitchen, took the stone from the cereal jar and were examining it under the electric light and were there about ten minutes. Within a few days thereafter the plaintiff and his wife went to Coney Island and had the janitor stay in the room about four hours with a young child about two year's old while they were gone. About a week thereafter the plaintiff’s wife, for some reason, looked into *415the can and found the stone missing. She thereupon made a thorough search all over the place and even went down stairs and looked through the ashes that were the result of the burning of the garbage to see if the stone was there. She was unable to find it and notified her husband, who gave notice to the insurance company, and this action was after-wards brought.
I am unable to attribute any significance to the examination of this stone in the kitchen under the electric light by the plaintiff and his wife and his wife’s father. Opposite the window the janitor had a room in the basement. It is not shown that the janitor was in his room in the basement, or that there was a fight there, or that he was present at any place where he could have seen what was going on. It appears that from the janitor’s room, the lower part of the kitchen, where this ring was being examined, could not be seen, and standing out in the courtyard outside of the janitor’s window, nothing definite could be seen because of net curtains which were hanging upon the window. The janitor was in this apartment for four hours upon the night that the plaintiff and his wife went to Coney Island, and if he had so desired he could easily have found this stone and have taken it, and this incident as to the examination of the stone several days before under the fight in the kitchen becomes in my view practically immaterial. The question then comes down to this: This stone has been lost. This janitor was in the apartment for four hours upon one night. He absolutely denies that he took the stone. The plaintiff and his wife swear that the stone was not seen by them after it was put back in the jar the night it was examined. Do these facts standing alone prove theft? The testimony of the wife is not wholly satisfactory. If she had known, as she now swears, that it was" last put in the jar upon the night it was examined, why did she hunt in the garbage and all over the house for it? She swears that she noticed that the stone was loose about two days before the plaintiff took it out of the setting. She had sworn before that the ring (meaning the setting) was put in the little jar as soon as the stone was taken out, and that the ring is still in the button jar. She stated: “ I took the stone and put it into the cereal jar.” *416She was then asked: “ Q. Do you know when it was you put this ring into the button jar? A. About two days before I placed the stone in the jar. Q. About two days before you put the stone in the jar? A. No, two days after my husband pushed the stone out of the ring.”
She afterwards swears that after the stone was pushed out of the ring, it was put into a cereal jar. “ Q. What did you do with the ring? A. Put it in the button jar. Q. There was two days elapsed between the time he took it out? A. No, sir, there was no lapse at all. He took the ring, pushed the stone out, and I put the stone in the cereal jar and the ring in the button jar.”
She swears that she went to get the ring thereafter because she wanted it reset. She was then asked: “ Q. Had you made any arrangements with anybody to have it reset? A. Yes, I think my husband made some arrangements with some jeweler, I don’t remember exactly. Q. Were you to go to the jeweler’s to take it there? A. I think — I don’t know — I don’t know — I suppose I was.”
The janitor denies absolutely having taken the stone, while admitting that he was in the apartment taking care of the plaintiff’s child the evening the plaintiff and his wife went to Coney Island. It may be that the plaintiff’s wife was confused in giving her testimony, and that her contradiction as to the relative time when she put the setting in the button jar and the stone in the cereal jar was only the result of that confusion. I agree, however, with the trial justice that the evidence fails to establish that this stone was stolen from the plaintiff’s apartment, upon which issue the plaintiff has the burden of proof.
The determination of the Appellate Term and the order of the City Court entered thereupon should be reversed, and the judgment of the City Court reversed and a new trial ordered, without costs of this appeal in the Appellate Term or in this court to either party as against the other.
Page, J., concurred.
Determination affirmed, with costs.