Opinion
March 27, 1951.
Present — Peck, P.J., Glennon, Dore, Cohn and Callahan, JJ.
There seems to be no basis for reformation or recovery on the policies in suit, unless there was clear and convincing proof of misdescription of the premises containing the insured property, and that such misdescription was written into the binders and policies by the defendants' agent despite the alleged telephonic advice of Shapiro that the goods were not located in the premises of the Rag Processing Corporation. There was a flat contradiction on this point by the defendants' agent. The case appears to have been decided by the trial court not upon its resolution of this issue of fact but upon other grounds. As the issue depends upon the veracity of the witnesses, we prefer to order a new trial under the circumstances presented by this record instead of finding the facts ourselves. Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event. Settle order on notice.