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Sagorsky v. Malyon

3 N.Y.2d 907 Court N.Y. Decision date 1957-10-24 English

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p. 907
Yetta Sagorsky et al., Copartners Doing Business under the Name of I. S. Sagorsky and Son, Appellants, v. B. H. Malyon, as One of the Underwriters at Lloyd’s, London, Subscribing Policy No. 49/30726, Respondent.
Argued May 21, 1957;
decided October 24,1957.
Paul D. Compton and Eugene Wollan for appellants.
Brendan C. Kelly, John J. Killea and Norman C. Mendes for respondent.

Plaintiffs sued defendant insurer under a policy covering the loss of certain jewelry stolen from the plaintiffs. The first trial of this action resulted in a jury verdict for the plaintiffs. In the Appellate Division judgment was reversed

p. 908
and the complaint dismissed. On appeal to this court the dismissal was reversed upon the holding that the evidence presented a question of fact for the jury. [ 307 N. Y. 584 .] After a new trial a second plaintiffs’ verdict was returned. Despite our earlier ruling this second verdict was set aside by the trial court and the complaint dismissed. The Appellate Division, without apparently passing on the facts, affirmed the lower court’s dismissal.

As we read the trial court’s decision and the Appellate Division’s affirmance, those courts have held, as a matter of law, that' the evidence adduced was insufficient to raise a question of fact. Since the records on the two trials are substantially the same, this ruling is contrary to our determination when the case was here before. Reiterating now our earlier ruling that the evidence here presented a question for the jury, we reverse and remit the case to the Appellate Division to afford that court opportunity to render judgment as it may deem proper, on the facts.

The judgment of the Appellate Division should be reversed and the case remitted to that court for further proceedings not inconsistent with the opinion herein.

Conway, Ch. J., Desmond, Fuld, Froessel, Van Voorhis and Burke, JJ., concur in Per Curiam opinion; Dye, J., dissents and votes to affirm.

Judgment reversed, etc.

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