Held, the dismissal of the complaint was error.
There being testimony from which the jury might infer lack of diligence on the part of the defendant's agent, there was also testimony sufficient to support a recovery. If certain items in the proofs of loss presented by the insured to the insurer and upon which the loss was adjusted were largely overvalued, primafacie the plaintiff suffered injury. If in fact the adjusted loss did not exceed the fire loss because of undervaluation of other items, the burden was on the defendant to show that fact. *Page 159
The judgment of the Appellate Division should be modified by striking out the direction for a dismissal of the complaint and by granting a new trial and as so modified affirmed, with costs in this court and in the Appellate Division to abide the event.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Judgment accordingly.