October 16, 1951.
Appeal from Supreme Court, New York County, NATHAN, J.
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, Kaplan Berger, attorneys), for respondents-appellants.
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.
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.