On January 27, 1915, plaintiff advised defendant that a burglary had been committed in his (plaintiff’s) summer home at Mountain Lakes, N. J. Plaintiff thereupon visited his country house at that place, and upon investigation found the house in order excepting that three silver match boxes were missing from the chiffonnier therein. A day or so later he related the circumstances of this burglary to one Berthold, vice-president of the defendant corporation. As a result of the conversation, and the inquiry of Berthold, the plaintiff procured Berthold to procure for him a policy of burglary insurance upon plaintiff’s premises at Mountain Lakes. ' The risk was assumed by the Great Eastern Casualty Company, and the policy went into effect on February 4, 1915.
Plaintiff’s family went to the summer home on March 15, 1915, and upon arriving there it was discovered that a second burglary had occurred and that *16articles of considerable value had been stolen from the premises. Plaintiff communicated the facts of the second burglary to Berthold, and the latter prepared schedules of the losses sustained. The schedules were submitted to the Great Eastern Casualty Company by Berthold. On May 7, 1915, the Great Eastern Casualty Company returned to the plaintiff the sum of fifteen dollars for the premium which the plaintiff had paid for the policy. In rescinding the policy and declaring it void, it stated: “ Our grounds for this rescission are, that various statements in your application, in consideration of which the policy was issued, among others that assured had never suffered losses from burglary, theft, or larceny, were untrue.”
The jury has found that the defendant was negligent; that the plaintiff was free from contributory negligence, and the appellant does not attack these findings. The appellant asserts as grounds for reversal that error was committed in receiving in evidence an exemplified copy of the record of conviction of one Dohle, who was indicted with others in Morris county, N. J., in May, 1915, for the crime of burglary, alleged to have been committed upon plaintiff’s premises, on February 12, 1915. It is urged that this record of conviction was res inter alios acta. Ordinarily, a record of a judgment in a criminal proceeding is not admissible as evidence in a civil action. The record, however, was admissible in this case, and was competent to prove that a judgment was rendered in the county in which it was entered, convicting some one of the crime of burglary at the time and place recited in the indictment. The record was conclusive of the fact that such a judgment was rendered, and that all the legal consequences followed therefrom.
There was sufficient evidence in the case to support the finding of the jury that the burglary was com*17mitted within the term of the policy, and, therefore, even if it might be said that the record was inadmissible, it was cumulative evidence, and it may not now be held to have been prejudicial to the defendant, as the evidence without the judgment roll was sufficient.
The schedules made up by the plaintiff, and the defendant’s vice-president, Berthold, were admissible, if for no other reason than that they were statements made by Berthold, binding upon his company, and were, therefore, an admission against interest.
There is no merit in defendant’s contention that the plaintiff has not been damaged, because the insurance company waived any defect in the policy after having rescinded it a.s a valid and binding contract. Plaintiff’s cause of action against the defendant became complete upon his receipt from the Great Eastern Casualty Company of its letter of May 7, 1915. At that moment the defendant’s negligent act had brought about a situation wherein the plaintiff had been deprived of his right to be indemnified against loss by the Great Eastern Casualty Company. At that time the plaintiff had sustained the damages, on account of which this action was brought. No subsequent conduct by third parties in this tort action could be shown, except in mitigation of damages.
It is my view that the judgment should be affirmed with costs.
Judgment reversed and new trial ordered, with costs to appellant to abide event.