On appeal from a judgment of the Second District Court of the City of Newark.
For the appellant, Bilder, Bilder & Kaufman and Sanford Freedman.
For the respondent, Jerome L. Kessler and Mortimer Eisner.
Before Justices Parker, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Second District Court of the City of Newark in a suit on a policy of rain insurance issued by the defendant-appellant to the plaintiff-respondent.
Plaintiff was the operator of a baseball club which was scheduled to play a game at Ruppert Stadium, Newark, on the evening of August 6th, 1940. He applied to the defendant for a policy of rain insurance and it was issued. The policy was in the amount of $500 and provided in part:
"It is the intent of this insurance to indemnify the insured against loss by rainfall incidental to the baseball game to be held at Ruppert Stadium, Newark, New Jersey, subject to the following conditions.
"In the event of one-tenth of an inch or more of rainfall as recorded at Newark Airport, Newark, New Jersey by Newark Airport, Newark, New Jersey, during the period of time hereinafter specified under any one item, this company shall be liable, except as otherwise provided, for the full amount of insurance specified for such item, such liability however, not to exceed the amount of insurance provided for such item, nor more than:
"1. One hundred per cent. (100%) of the net expenses incurred by the insured for such day and for such event."
The period of time specified to be covered by the policy was August 6th, 1940, between 7 P.M. and 10 P.M. Daylight Time. The policy further provided:
"It is a condition of this insurance that:
"1. The insured shall arrange with the above observer for obtaining a rainfall reading with a rain gauge during the period of time hereinbefore specified, in which the measure of rainfall shall be determined, and shall, on demand of this company, furnish a certified record of ...