The opinion
Kelly, P. J. (dissenting):
I think the judgment should be affirmed. Defendant for premiums paid, engaging in the business of insuring future profits, cannot complain because it may be difficult to ascertain the amount of future profits. It seems to me, the plaintiff presented the best evidence it had. It is said that the evidence is speculative, but future profits are necessarily speculative, and this is what plantiff wished to insure and what defendant agreed to insure. I do not agree that, because plaintiff’s stock was destroyed by fire at a time when there was no market for its goods because the mills which it supplied were temporarily closed, its profits were measured by market price at the time of the fire. The mills subsequently resumed business and I think the jury could consider the profits which might reasonably be expected from sales, when sales could be made in the regular course of business. That the evidence is to a certain extent speculative results from the nature of defendant’s contract of insurance. I concur in the affirmance of the order denying plaintiff’s motion to add interest to the damages found by the jury.
Judgment and order denying motion for a new trial reversed upon the law, and a new trial granted, costs to abide the event. Order denying plaintiff’s motion to add interest to the amount of the verdict affirmed.