On a former appeal a judgment in favor of the defendant was reversed on the ground that “ the evidence * * * justifies the conclusion that Kriegel and Burns agreed upon the issuance of a policy to cover merchandise and that by mistake the policy was issued upon the brick store,” and judgment was directed for the plaintiff. (Castellano v. American Ins. Co., 222 App. Div. 169.) On reargument a new trial was ordered in order that Burns might specifically deny, if he could, the making of any such agreement. (222 App. Div. 810.) The record now before us discloses no such categoric denial. The evidence is substantially the same as on the first trial. The judgment in favor of defendant should, therefore, be reversed, with costs, and final judgment directed in favor of plaintiff, with costs.
Merrell and McAvoy, JJ., concur; Dowling, P. J., and Martin, J., dissent.