
    SUPREME COURT, APPELLATE TERM,
    APRIL, 1901.
    Emanuel Kind, Appellant, v. Alexander S. Bacon, Respondent.
    Appeal from judgment and order ©f the General Term of the City Court of New York, which reversed a judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    Menken Brothers, for appellant.
    Nichols & Bacon, for respondent.
   Bischoff, P. J.

The action was founded upon a Lloyds ” policy of fire insurance, the defendant’s liability as an underwriter being fixed by judgment first obtained, in accordance with the policy, against the “ attorneys in fact.” The main defense was that the plaintiff had assigned the judgment, obtained against the attorneys in fact, to one Cuff, who had brought an action upon the same claim against this defendant, and that the action was still pending. In support of this defense evidence was produced in the form of a recital of the assignment by the plaintiff to Cuff, contained in an order of the Supreme Court entitled in the plaintiff’s action against the attorneys in fact, which order was entered on a motion to which the plaintiff was a party. Further evidence was afforded by a letter written by the plaintiff’s attorneys, in which the existence of the assignment to Cuff was directly referred to.

"With this evidence in the case, we have no doubt that the testimony given by the plaintiff and by one of his attorneys, in denial of the assignment, was quite insufficient to justify the direction of a verdict for the plaintiff, against the request of the defendant that this issue be submitted .to the jury. Both these witnesses were interested in the result of the case, and it was, therefore, a question for the jury whether their testimony should be accepted (Kavanagh v. Wilson, 70 N. Y. 179), as against the prima facie evidence given in support of the affirmative defense.

Whether or not the' action against Cuff had been legally dis-* continued, there was certainly an issue upon the allegation that the plaintiff was not the real party in interest, and upon this issue the facts relating to the assignment should have been left to the jury, as requested.

We agree with the learned General Term that the direction of a verdict was erroneous, but we cannot hold that the record afforded grounds for the absolute dismissal of the complaint by that court. If, as appears to have been held, the action by Oufí was to be viewed as still pending, as a matter of law this did not conclude the issue of fact, as to the assignment to Cuff, against the plaintiff, and in no aspect of the case can it be determined that the plaintiff.must suffer defeat when his case is presented upon a new trial. Therefore, the refusal to grant a new trial was erroneous, and the matter involves a question of power which we may review. Lopez v. Campbell, 163 N. Y. 340.

Judgment and order modified so far as to direct a new trial, with costs of the appeal to this court to appellant to abide the event.

Leventbitt and Clause, JJ., concur.

Judgment and order modified so far as to direct a new trial, with costs to appellant to abide event.  