249 A.D. 819 | N.Y. App. Div. | 1937
Action for reformation of insurance policies and recovery thereon for loss sustained by reason of fire. In so far as it reforms and corrects the policies in certain particulars, the judgment is unanimously affirmed, without costs. In all other respects the judgment is reversed on the law and the facts and a new trial granted, costs to abide the event. In our opinion, the finding that the premises were wholly destroyed by fire and that “ any explosion which may have occurred * * * during the course of said fire was preceded by said fire and was incidental thereto,” and the fixation of the cash value of the property destroyed by fire in the sum of $10,250, together with appropriate conclusions based thereon, are against the weight of the credible evidence. The fact established by many disinterested witnesses of apparently unquestionable integrity, is that an explosion, so terrific as to cause the side walls of the building to be blown out and to wrench the joints of the house, preceded the flames. The respondents offer no explanation of the source or origin of the happening, whether fire or explosion. Moreover, the house was vacant at the time, the tenants therein having moved or having been notified to leave approximately a month prior to its destruction. Under all the circumstances, in our opinion, any finding that the fire preceded the explosion was based upon pure conjecture. Upon the new trial it will be incumbent upon the plaintiff to furnish an adequate basis for the segregation of the recoverable damage by fire from that caused by the preceding explosion, if it be found on the new trial that such explosion did precede the fire. Plaintiff’s findings of fact numbered 25, 26, 27 and 28, and conclusions of law numbered 4 and 5, and defendant-respondent’s findings of fact cumbered 24 and 25 and conclusions of law numbered 4 and 5, are reversed. Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.