Sagorsky v. Malyon

Per Curiam.

Plaintiffs sued defendant on an insurance policy which insured them in the sum of $40,000 against the loss of jewelry belonging to them “ arising from any cause whatsoever ”. The policy excepted from coverage a case where the loss occurred while the property was in or upon any automobile unless at the time of loss there was actually in or upon such vehicle the assured or a permanent employee of the assured, or a person whose sole duty it was to attend the vehicle. The Trial Judge charged the jury that the sole question was whether, at the time of loss of the jewelry — by theft — the automobile in which one of the plaintiffs had placed the jewelry was attended by the assured or a permanent employee of the assured, or a person whose sole duty it was to attend the vehicle. The jury resolved that- question in favor of plaintiffs. The Appellate Division reversed, upon questions of law and fact, and dismissed the complaint on the grounds: (1) that the verdict is against the weight of the evidence, and (2) that the evidence leads inevitably to the conclusion that at the time of the theft there was not “ actually in or upon ” the vehicle in question “ a person whose sole duty it was to attend the vehicle.”

The Appellate Division is without power to dismiss a complaint upon the ground that the verdict of the jury is against the weight of evidence when plaintiff has made out a prima facie case. Its power in such a case is limited to the ordering of a new trial. (See Caldwell v. Nicolson, 235 N. Y. 209, 212; Imbrey v. Prudential Ins. Co., 286 N. Y. 434, 440-441.) The issue to be resolved, then, is whether the plaintiffs made out a prima facie case. In determining that question in favor of plaintiffs, we have been guided by the rule that the facts adduced at the trial are to be considered in the aspect most favorable to plaintiffs and that plaintiffs are entitled to the benefit of every favorable inference which can reasonably be drawn from those facts (De Wald v. Seidenberg, 297 N. Y. 335, 336-337; Osipoff v. City of New York, 286 N. Y. 422, 425; Faber v. City of New York, 213 N. Y. 411, 414).

We pass upon no other question.

The judgment should be reversed and a new trial granted, with costs to abide the event.