Hallas v. North River Insurance , 279 A.D. 15 ( 1951 )

Per Curiam.

The evidence compels the conclusion that the loss sued on had its origin in an explosion and that any fire covered by the policies in suit was a fire which followed the explosion. Plaintiff, therefore, had the burden under the policies of showing the extent of any covered loss occasioned by fire as distinguished from any excluded loss caused by the explosion (Nasello v. Home Ins. Co., 277 N. Y. 632). Plaintiff failed to do this and quite clearly would not be able to do it on another trial. For failure and inability to sustain his burden of proof, the complaint should be dismissed.

We think a further ground requiring dismissal of the complaint was plaintiff’s willful refusal to answer relevant questions on his examination by defendants. That refusal was a breach of one of the substantial conditions of the policies.

The order, so far as appealed from by defendants, should be reversed and their motions to dismiss the complaint granted, with costs.