The payment by the defendants to the insured, of a part of the sum agreed to be paid by the policy, was a waiver of the usual preliminary proofs. (Vos v. Robinson, 9 John. 192. Johnston v. Columbian Ins. Co., 7 Id. 315.) But the defendants themselves, in a subsequent stage of the trial, gave in evidence the preliminary proofs which the insured had furnished in pursuance of the requirements of the policy. They were substantially in proper form, and do not seem to have been objected to at the time. Aside from the waiver' by partial payment, the production of the papers by the defendants is an answer to the exception. If a deficiency in the plaintiff’s proof is supplied, during the trial, by the defendants themselves, it is a waiver of any exception they may have taken, based on such deficiency.
The question to Taggart calling for his opinion of the value of the mill, was properly overruled. The witness, though a millwright, had never seen or been within fifty miles of the mill in question. He admitted that he could not make a close estimate of the cost of the mill, from the testimony of Leonard, without seeing the mill or a drawing of it; and that it was very hard to estimate the cost without seeing or knowing just what the work was. Still he thought he could come within five or ten per cent of the cost, if he had a right view of the mill. The opinion, therefore, was little, if any thing, more than a guess. The principle on which opinions in cases of this kind are admissible, is, that the facts, disconnected from such opinions, cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment. (Per Sutherland, J. in Jefferson Ins. Co. v. Cotheal, 7 Wend. 78.) Thus a physician, in many cases, cannot so explain to a jury the cause of the death, or other serious injury of an individual, as to make them distinctly perceive the connection between the cause and its effect. He may therefore express an opinion that *213the wound given, or the poison administered, produced the death of the deceased; but in such a case he must state the facts on which his opinion is founded. (Id. 8 Mass. R. 371. 9 Id. 225. Culver v. Haslam, 7 Barb. 314. Paige v. Hazard, 5 Hill, 603. 4 Barb. 625. Lamoure v. Caryl, 4 Denio, 370, 374. Cowen & Hill’s Notes, 760.) There was nothing peculiar in this case which called for a relaxation of the rules of evidence. Hundreds, it is presumed, might have been produced who had seen and examined the mill, and who were equally competent to judge of the nature and quality of the work, with Mr. Taggart. The means which the witness proposed of judging, did not differ essentially from those enjoyed by the jury.
The exclusion of the written declaration of Bens, made to the secretary of the defendants, of a detailed statement of the cost pf the building, was properly overruled. It was the mere declarations of a vendor who was a competent witness himself. Such declarations are not admissible, when the action is between his vendor and a third party. (Hurd v. West, 7 Cowen, 752. Paige v. Cagwin, 7 Hill, 361.) But the decisive answer to the exception is, the defendants introduced Bens as a witness, and fully examined him on the whole case. This was a waiver of the exception taken to the decision, excluding his admissions.
The judge was right in refusing to charge that the defendants had reserved a right in the policy, to declare it void, on receiving notice of another insurance on the same property, or to prescribe the terms and amount for which it should subsequently stand good. There is clearly no such clatise in the policy. Nor did the policy, as in Potter v. The Ontario and L. Mut. Ins. Co., (5 Hill, 147,) contain a clause that any other insurance should not only be notified with all reasonable diligence to the defendants, but should also be indorsed on the policy, or otherwise acknowledged and approved by them in writing, and if not so done, the policy should cease and be of no further effect. It merely required the insured, on effecting a subsequent insurance on the same property, to give notice thereof with reasonable diligence, and have the same indorsed on the policy, or otherwise acknowledged in writing. The defendants did not *214reserve to themselves the right, as in the case cited, to approve or disapprove of it. The insured gave the notice, and procured the new insurance to he indorsed on the policy. He thus fulfilled the condition. The defendants had no right to change the whole contract, hy imposing a condition not contained in the policy.
If it be true, that the insured might, by acquiescing in the change proposed by the defendants in the terms of the policy, be bound by said change, there should be some evidence of his acquiescence. In the present case there was no such evidence. The defendants, in their answer, do not pretend that the insured assented to the alteration, or that the original contract was altered. They merely claim the right, on their part, to alter the policy, on receiving notice of another insurance on the property.
The only part of the charge which has been insisted on as erroneous is, that the defendants had no right, in acknowledging the receipt of notice of another insurance, to prescribe the terms on which their liability should continue. This has already been disposed of. The insurance companies may, no doubt, so frame their policies as not to be liable, in the case of loss, beyond two-thirds the value of the subject insured. There ivas no such clause in this policy. The insured was therefore entitled to recover the balance due on the policy, provided the value of the property insured was equal to or greater than the sums insured by the defendants and the Gore District Mutual Ins. Oo., deducting the amount admitted to have been paid. The two policies amounted to four’ thousand dollars. Ho witness estimated the value of the property at less than four thousand six hundred dollars, and one put it as high as six thousand dollars.
The question of fraudulent representation was fairly submitted to the jury. There was no evidence of a fraudulent over estimate of the value of the property, when the insurance was effected. The fact that the value of the mill, beyond all dispute, exceeded the amount of both policies, repels every imputation of this kind. The judgment should be affirmed.
Hand, J. and C. L. Allen, J. concurred.
*215Cady, J.The first point made on the argument, on the part of the defendants, was, that the court erred in excluding the evidence of Nathaniel Taggart. He had never seen the saw-mill, nor a drawing of it; and although he was a millwright, his opinion of its value was not admissible as evidence. A man skilled in the value of horses would not, I think, be allowed to testify as to the value of a horse which he had never seen; although he had heard the description of the horse from another witness.
The second point made on the part of the defendants was, that the court erred in excluding the detailed statement of the cost of the mill, made by Bens. That statement was properly excluded, according to the case of Paige v. Cagwin, (7 Hill, 361.)
The third point insisted on by the defendants’ counsel was, that the court erred in refusing to charge the jury as requested by such counsel; and that the court also erred in that part of the charge which was excepted to. The ground for this point is to be found in this clause in the policy: “ In case the insured shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice to the company, and have the same indorsed on the policy, or otherwise acknowledged by them in writing, the policy shall cease and be of no further effect.” In relation to this clause in the policy, the court decided that, “ By this policy, all that was required was notice of additional insurance. That the company did not reserve to themselves the right to cancel the policy, or change it, on receiving notice. By the terms of the policy, if the insured shall make other insurance, two things are to be done, or the policy is to cease, and be of no further effect: to wit, the insured must, with all reasonable diligence", give notice thereof to the defendants, and have the same indorsed on the policy, or otherwise acknowledged by them in writing. One of these acts the insured could do, but the other he could not.” The defendants have the power to say to the insured “ we will not give you any written acknowledgment of your notice of further insurance,” and by withholding such acknowledgment the policy would become void. I am therefore of opinion that the defendants did *216in legal effect reserve to themselves the right to cancel the policy, by refusing to give an acknowledgment of notice of other insurance. But the expression of a contrary opinion by the court, on the trial, would not prejudice the defendants, unless they had the right to alter the policy, or its legal effect. They did give a written acknowledgment of the notice of further insurance. And I find nothing in the policy to give a qualified or conditional acknowledgment of notice of further insurance. They have the right to elect to withhold such acknowledgment, and thereby annul the policy; or to give the acknowledgment, and continue the policy in full force. They elected to give the acknowledgment, and must be bound by it. I am therefore of opinion that the motion for a new trial should be denied.
[Fulton General Term, September 6, 1852.Willard, Hand, Cady and C. L. Allen, Justices.]
Judgment affirmed.