Opinion
December 10, 1957
When this cause was before us on appeal following the second trial, we reviewed the evidence and affirmed the lower court's dismissal of the complaint. ( 2 A.D.2d 675.) The order of this court was reversed by the Court of Appeals ( 3 N.Y.2d 907) which held that the "evidence here presented a question for the jury", and the case was remitted to this court "to render judgment as it may deem proper, on the facts." From our examination of the record, it was evident that the verdict was against the weight of the evidence, but we were apparently in error in affirming a dismissal of the complaint for insufficiency of the evidence. We are, therefore, satisfied that there must be a new trial. Since the appeal was concerned with the weight or sufficiency of the evidence, we did not reach the objections raised as to the correctness of the trial court's instructions to the jury. The charge with respect to the burden of proof was inadequate, and there was a failure to properly instruct the jury that the plaintiffs had the burden of proof upon the whole case. Not alone were they required to establish that their loss was covered by the terms of the policy under which recovery was sought, but also, that it was not barred by the exclusion provision of the contract. (See Balinsky v. National Cas. Co., 33 N.Y.S.2d 737; Bliss Ring Co. v. Glove Rutgers Fire Ins. Co., 7 Ill. App.2d 523. ) The judgment is reversed and a new trial ordered. Settle order.
Concur — Peck, P.J., Breitel, Rabin and Frank, JJ.