
    Julius Pollack, Respondent, v. Hawkeye Securities Fire Insurance Company, Des Moines, Iowa, Appellant.
    Fourth Department,
    March 27, 1925.
    Trial — new trial — action on fire insurance policy — insured was convicted of arson after judgment in this action—new trial granted on ground of newly-discovered evidence.
    A new trial will be granted to defendant in an action to recover on a fire insurance policy on the ground of newly-discovered evidence where it appears that at the the time the action was tried, which resulted in a verdict in favor of the plaintiff, the plaintiff was under an indictment for arson growing out of the fire, and was later convicted of that crime and the judgment of conviction was affirmed, and that material evidence given on the criminal trial was unknown at the time of the trial in this action.
    Appeal 'by the defendant, Hawkeye Securities Fire Insurance Company, Des Moines, Iowa, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of September, 1923, resettling an order entered in said clerk’s office on the 25th day of August, 1923, denying defendant’s motion for a new trial upon the ground of newly-discovered evidence.
    
      Thomas J. Cummings [James M. H. Wallace and Joseph Swart of counsel], for the appellant.
    
      O’Connor, Newton & Doyle [Thomas L. Newton of counsel], for the respondent.
   Per Curiam:

Plaintiff herein, as assignee of the insured, Irving Siegel, brought action on a policy of fire insurance. The trial was had in November, 1922, and resulted in a verdict for plaintiff. At that time the insured was under indictment for arson growing out of the fire. The trial of the indictment was had in June, 1923. There was a judgment of conviction which was subsequently affirmed by this court and by the Court of Appeals. (People v. Siegel, 208 App. Div. 716; affd., 238 N. Y. 589.) Material evidence given on the criminal trial was unknown and hence not used in the civil trial. Under these circumstances we think the motion for a new trial on the ground of newly-discovered evidence, denied before the criminal appeal was heard," should have been granted.

The order appealed from should be reversed, with costs, and the motion granted, with costs to abide the event.

All concur. Present — Hubbs, P. J., Clark, Davis, Crouch and Taylor, JJ

Order denying motion for new trial on ground of newly-discovered evidence reversed, with costs, and motion granted, with costs to abide event.  