
    The Globe and Rutgers Fire Insurance Company, Appellant, v. General Adjustment Bureau, Respondent.
    (Argued December 3, 1928;
    decided December 31, 1928.)
    
      
      Robert Kelly Prentice for appellant.
    The dismissal of the complaint upon a reversal of the judgment as against the weight of evidence was in and of itself error. (Goodman v. Marx, 234 N. Y. 172; Caldwell v. Nicolson, 235 N. Y. 209.)
    
      Edgar J. Nathan and Brison Howie for respondent.
    The denial of motion to dismiss at the close of the case was error. The Appellate Division in its reversal properly ordered a dismissal. (Goodman v. Marx, 234 N. Y. 172; Eno v. Klein, 236 N. Y. 543; Murtha v. Ridley, 232 N. Y. 488; Nod-Away Co. v. Carroll, 240 N. Y. 252; Dodge v. Cornelius, 168 N. Y. 242.)
   Per Curiam.

Held, the dismissal of the complaint was error.

There being testimony from which the jury might infer lack of diligence on the part of the defendant’s agent, there was also testimony sufficient to support a recovery. If certain items in the proofs of loss presented by the insured to the insurer and upon which the loss was adjusted were largely overvalued, prima facie the plaintiff suffered injury. If in fact the adjusted loss did not exceed the fire loss because of undervaluation of other items, the burden was on the defendant to show that fact.

The judgment of the Appellate Division should be modified by striking out the direction for a dismissal of the complaint and by granting a new trial and as so modified affirmed, with costs in this court and in the Appellate Division to abide the event.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment accordingly.  