Majority
p. 977Kelvin Engineering Co., Inc., et al., Respondents, et al., Plaintiff, v. American Surety Company of New York, Appellant. (Action No. 1.) American Surety Company of New York, Plaintiff, v. Kelvin Engineering Co., Inc., et al., Defendants. (Action No. 2.)
In an action (Action No. 1) by the assureds against the insurer upon a policy of liability insurance, to recover damages for fraud and breach of the fiduciary relationship, the defendant insurer appeals from so much of a judgment of the Supreme Court, Westchester County, entered May 18, 1961 upon the verdict of a jury after trial,
p. 978
as is in favor of the plaintiffs Kelvin Engineering Co., Inc., and Thomas F. O’Dowd against the defendant. The action (No. 1) was dismissed as to the plaintiff De Maria; and on stipulation Action No. 2 was dismissed against all the defendants. There is no appeal with respect to such dismissals. Judgment, insofar as appealed from, reversed on the facts; Action No. 1 severed from Action No. 2; and, in Action No. 1, new trial granted between Kelvin Engineering Co., Inc., and Thomas E. O’Dowd, plaintiffs, and the American Surety-Company of New York, defendant, with costs to abide the event, upon the ground that the jury’s verdict is against the weight of the credible evidence. Ughetta, Acting P. J., Christ and Hill, JJ., concur; Kleinfeld and Brennan, JJ., dissent and vote to affirm on the ground that questions of fact were presented for determination by the jury and, on' this record, it may not be said that the verdict is against the weight of the credible evidence.