Dorphan v. Continental Casualty Co.

242 A.D. 900

Opinion

Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum. We appreciate that we are reviewing a judgment based upon a second jury verdict in favor of plaintiffs. However, according to the testimony of plaintiffs and their witnesses Progatsky and Dudziak, it would have been almost, if not quite impossible for robbers to have perpetrated robbery or even to have entered the drug store with felonious intent before midnight. Adding to this the testimony of Meegan, Officers Keller and Kurtz, and Detective Vickers, the aggregate of credible evidence is so much in favor of defendant’s general contention that the verdict for the plaintiffs should be held to have been against the weight of the evidence. All concur, except Sears, P. J., who dissents and votes for affirmance on the ground that this second verdict for the plaintiffs, concededly supported' by some evidence, should be sustained. (The judgment is for damages under a robbery insurance policy covering property from seven a. m, until midnight.)