Hallas v. North River Ins. Co. of N.Y

Full title: JAMES HALLAS, Appellant-Respondent, v. NORTH RIVER INSURANCE COMPANY OF…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 16, 1951

279 A.D. 15 (N.Y. App. Div. 1951)

107 N.Y.S.2d 359

Opinion

279 A.D. 15 107 N.Y.S.2d 359 JAMES HALLAS, Appellant-Respondent, v. NORTH RIVER INSURANCE COMPANY OF NEW YORK, Respondent-Appellant. JAMES HALLAS, Appellant-Respondent, v. COSMOPOLITAN MUTUAL FIRE INSURANCE COMPANY OF NEW YORK, Respondent-Appellant.

Supreme Court of New York, First Department. October 16, 1951

         CROSS APPEALS from an order of the Supreme Court at Trial Term (NATHAN, J.), entered April 11, 1950, in New York County, which (1) granted motions by defendants to set aside verdicts in favor of plaintiff, (2) denied motions made by defendants to dismiss the complaint at the end of plaintiff's case and at the end of the whole case, (3) denied motions by defendants for directed verdicts at the end of the whole case, and (4) directed a new trial in both actions. Plaintiff appeals from that part of the order which granted the motions by defendants to set aside the verdicts in favor of plaintiff and granted a new trial. Defendants appeal from the order except insofar as it granted the motions to set aside the verdict.

         COUNSEL

          Leo B. Mittelman of counsel (Frederick W. Scholem, attorney), for appellant-respondent.

          Samuel A. Berger of counsel (Irwin Leibowitz with him on the brief; Powers, Kaplans&sBerger, attorneys), for respondents-appellants.

          Per Curiam.

          The evidence compels the conclusion that the loss sued on had its origin in an explosion and that any fire covered by the policies in suit was a fire which followed the explosion. Plaintiff, therefore, had the burden under the policies of showing the extent of any covered loss occasioned by fire as distinguished from any excluded loss caused by the explosion (Nasello v. Home Ins. Co., 277 N.Y. 632). Plaintiff failed to do this and quite clearly would not be able to do it on another trial. For failure and inability to sustain his burden of proof, the complaint should be dismissed.

          We think a further ground requiring dismissal of the complaint was plaintiff's willful refusal to answer relevant questions on his examination by defendants. That refusal was a breach of one of the substantial conditions of the policies.

          The order, so far as appealed from by defendants, should be reversed and their motions to dismiss the complaint granted, with costs.

          CALLAHAN, J. (dissenting).

          I dissent and vote to affirm on the ground that there is a question for the jury with regard to the extent and proximate cause of the damage. Nor in my opinion can it be said as a matter of law on this record that plaintiff was guilty of willful refusal to answer relevant questions on his examination by defendants. It is, therefore, improper to dismiss the present complaint. However, the trial court was justified in its discretion in setting aside the verdict of the jury on the ground that it was contrary to the weight of the evidence.

          PECK, P. J., GLENNON, DORE and COHN, JJ., concur in Per Curiam opinion; CALLAHAN, J., dissents in opinion.

          Order, so far as appealed from by the defendants, reversed and their motions to dismiss the complaint granted, with costs. Settle order on notice.