Opinion
March, 1933.
Judgment and order reversed on the law and the facts and a new trial granted, costs to abide the event, on authority of Halbreich v. Travelers Fire Ins. Co. ( ante, p. 841), decided herewith. Here there was a defense of fraud pleaded, but there was no proof to sustain it. The evidence invoked as constituting fraud did not concern anything other than testimony on the trial, unrelated to alleged fraudulent acts prior to the trial. It was not proved that any alleged acts of fraud or false swearing were perpetrated on this defendant prior to the trial. Therefore, there was no fraud proved within the defense pleaded. (Joyce Ins. [2d ed.], vol. 5, § 3344, p. 5554, and cases cited.) Kapper, Carswell, Scudder and Tompkins, JJ., concur; Lazansky, P.J., concurs in result.