#### Harry L. Dangler, Respondent, *v.*National Surety Company, Appellant.

First Department,

June 4, 1915.

Insurance —burglary insurance —provision that there shall be visible evidence of violent entry or exit — failure of proof.

Where a policy of burglary insurance provided that in order that the insurer shall be hable for loss, a forcible and violent entrance upon or exit from the premises must be shown by “visible evidence,” there can be no recovery by the insured where the proof merely shows that during a fire, doors and lattices covering windows of the premises had been torn down by the firemen in order to lay a hose. Such evidence does not establish any forcible entry or exit for burglarious purposes.

Appeal by the defendant, National Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.

*Joseph L.*Prager, for the appellant.

*M. L. Heide,*for the respondent.

Scott, J.:

The action is upon a policy of burglary insurance. The policy provided that the insurer should be liable for “direct loss by burglary * * * by any person or persons who

have made forcible and violent entrance upon the premises or exit therefrom, of which force and violence there shall be *visible evidence.”*

*90The insured was a dealer in ostrich feathers occupying the fourth floor of aloft building. On the evening of November 29, 1912, the date alleged in the complaint as that upon which the burglary occurred, there was a fire in the loft above that occupied by plaintiff. He was summoned and when he reached his place of business he found the door leading into his premises broken into and the lock smashed. In the rear of the premises certain lattice screens which had covered the windows were torn down and one of them was broken. These constitute the “ visible evidence ” of a forcible entry upon which plaintiff relies, and except these things there were no evidences of any forcible entry, although some of the boxes inside the premises appeared to have been roughly handled.

It was shown beyond contradiction, and indeed was not attempted to be contradicted, that these visible marks of violence upon the door and windows were produced by the firemen who broke in the door and tore the screens from the windows in order to carry a hose through the premises. Obviously, these evidences of violence did not indicate that any person or persons had made a forcible entry or exit for burglarious purposes. Apparently the plaintiff suffered a loss, but there is no evidence that it was of the character covered by the policy upon which he sues.

The verdict was directly contrary to the charge of the court, but in our opinion there was nothing to submit to the jury for the uncontradicted evidence was that there were no visible evidences of a burglary. The finding of the jury that there had been a burglary by any person or persons who had made forcible and violent entrance upon the premises or exit therefrom, of which force or violence there was visible evidence, is without evidence to support it and is reversed.

The judgment should be reversed and the complaint dismissed, with costs in all courts to the appellant.

Ingraham, P. J., Clarice, Dowling and Hotchkiss, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs.