American Lumber Co. v. Employers Mutual Fire Insurance , 1 Misc. 2d 1010 ( 1956 )

Per Curiam.

If, as plaintiff claims, the damage involved did not stem primarily from a collision (with a puddle of water) in the first instance, but was caused by the action of water upon the vehicle, and the collision was a proximate cause flowing from such action, plaintiff is entitled to recover (Tonkin v. California Ins. Co., 294 N.Y. 326). If, on the other hand, as defendant contends, the loss was caused by a “ collision with a water puddle ’ ’, plaintiff would not be entitled to recover (Harris v. Allstate Ins. Co., 309 N.Y. 72). Which of the two versions is the true one is a question of fact, which should be determined by the trier of the facts.

The judgment and order should be reversed, with $10 costs, and motion denied.

Hofstadter, Hecht and Aurelio, JJ., concur.

Judgment and order reversed, etc.