Mugavro v. Ætna Insurance

242 A.D. 806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1934
• Status: Published

Opinion

Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event, on the ground that the finding of the jury to the effect that the defense relating to the fire being set by the plaintiff directly or indirectly is against the weight of the evidence. All concur, except Crosby, J., who dissents and votes for affirmance in the following memorandum: While the circumstances surrounding this fire are such as to excite suspicion of plaintiff’s guilt in causing it, the burden was upon defendant to establish it, and the record amply justified the jury in finding that defendant did not bear its burden. The difficulty of behoving that someone other than plaintiff caused the fire is not greater than the difficulty of behoving that plaintiff caused a fire without any motive. He was not over-insured, and he was not pressed for ready money, and I cannot see that this is a case for the court’s interference with the verdict of the the jury. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.