(dissenting). The only issue in this case turns on whether the loss of the valuable ease of jewelry from the assured’s rented automobile occurred “ whilst * * * there [was] actually in or upon such vehicle, the Assured or a permanent employee of the Assured, or a person whose sole duty it is to attend the vehicle ”. (Jewellers’ Block Policy, #49/30726, Exception, par. 9; emphasis supplied.)
Concededly, when the loss occurred the “ Assured ” or “ a permanent employee of the Assured ” was not actually in or upon the rented automobile, thus leaving only the single question of whether the garage employee to whom the assured had *587entrusted the automobile containing the case of jewelry was “ actually in or upon such vehicle ” and was “ a person whose sole duty it is to attend the vehicle ’ ’. The evidence as to these prerequisite essentials for recovery shows that the garage employee was at the time engaged in performing the duties incident to his job as garage manager, in the course of which he left the automobile unattended, a fact which counsel for plaintiffs concedes, “ except for not more than one minute ”. There is in addition uncontradicted testimony of two disinterested third persons who had parked their respective automobiles on the public street near the garage entrance and were able to observe that while the assured’s rented car was standing unattended in the doorway of the garage, a man opened the door, took out a case (similar in appearance to the jewelry case that was lost) and walked hurriedly down the street.
The only reasonable inference to be drawn from such evidence, and here there is no basis for denying its conclusiveness (Hull v. Littauer, 162 N. Y. 569), is that at the time of the theft the vehicle was unattended.
In such a state of the record the trial court erred as a matter of law in failing to grant defendant’s motion for a dismissal of the complaint and when this was denied, for a directed verdict in its favor. For such failure the reversal in the Appellate Division was proper. Nothing to the contrary turns on the circumstance that in dismissing the plaintiffs’ complaint the court below used the phrase “ The verdict is against the weight of the evidence ” since the reversal was upon “ questions of fact and of law”. "When they stated that “ The evidence leads inevitably to the conclusion that at the time of the theft ” the vehicle was unattended, they thereby recognized as a matter of law that the exception of the exclusion clause had not been successfully overcome, which required a dismissal of the complaint rather than the granting of a new trial.
The most favorable inference rule cannot serve to justify the granting of a new trial in this instance. That is available to an appellant only when there is evidence presenting a question of fact (De Wald v. Seidenberg, 297 N. Y. 335). Here, as the record shows, there is not a scintilla of evidence to support an inference that the loss occurred within the coverage of the policy. *588It all points to the simple conclnsory fact that the loss occurred while the vehicle was, in fact, unattended. It has long been the rule — and still is — that “ ‘ insufficient evidence is, in the eye of the law, no evidence.’ ” (Matter of Case, 214 N. Y. 199, 203.)
We do not read the Caldwell and Imbrey cases cited in the majority opinion as compelling the granting of a new trial. Here the uncontroverted testimony negates plaintiffs ’ right to recover and requires dismissal of the complaint. We note that in each of the cited cases issues of fact were presented which had not been disposed of, thereby rendering a dismissal of the complaint improper.
The judgment dismissing the complaint should be affirmed, with costs to the respondent.
Lewis, Oh. J., Conway, Desmond and Froessel, JJ., concur in Per Curiam opinion; Dye, J., dissents in opinion in which Van Voorhis, J., concurs; Fuld, J., taking no part.
Judgment reversed, etc.