Levy v. Fidelity & Casualty Co. , 158 N.Y.S. 804 ( 1916 )

PER CURIAM.

Plaintiff held an indemnity accident policy issued by the defendant, and claims to have been injured by a fall. He demanded payment from the defendant, which was refused, and brings this action.

At the close of the plaintiff’s case the defendant’s attorney moved to dismiss the complaint, basing the motion solely upon the ground that plaintiff suffered no injuries or disability resulting from the accident to entitle him to recover any sum whatever. We think there was ample evidence as to the accident causing the injury, and also sufficient evidence to go to the jury on the extent of the plaintiff’s disabilities. Both plaintiff and his doctor testified that plaintiff was confined to his house and could not go to his place of business from the 13th to the 24th of June, 1915. The plaintiff also testified that he was advised by his physician to go into the country to recuperate, which plaintiff did, and remained there for several weeks, and that he was attended there at least once by a physician, and still had his injured ankle bandaged. The plaintiff was, we think, entitled to have the jury pass upon the question. There was not such a clear lack of evidence as to warrant a dismissal of the complaint.

Judgment should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event.