
    Allen Litke, Respondent, v. Travelers Insurance Company, Appellant.
   Order, Appellate Term, First Department, entered October 25, 1973, affirming a judgment of' the Civil Court, New York County, entered in favor of plaintiff, after a jury trial, affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. In view of the verdict of the jury we must assume that it was found as a fact that" a burglary had indeed taken place. Certainly it was within the jury’s province to arrive at this determination. That being so, we can see no justification to interfere with the judgment. Concur—- Markewich, J. P., Murphy and Capozzoli, JJ.; Nunez and Steuer, JJ., dissent in the following memorandum by Steuer, J.: In this action on a burglary insurance policy we find the sequence of events encompassing the alleged burglary to be so bizarre that it challenges credulity. Coupled with this is a claim of loss that can only be described as fantastic. The value of the items was established solely by plaintiff’s testimony of what he paid for them, without any supporting invoices or other documentary evidence. Further doubt is cast upon the claim by the fact that plaintiff’s resources and income gave no clue as to how these articles could possibly have been purchased at the prices testified to and, in fact, negated such a possibility. We are mindful that this presented a jury question, but we are also aware that, where the testimony presents a situation that is virtually a physical impossibility, we are required to set aside the jury’s finding. We would reverse and order a new trial.  