#### Mary Marx et al., Appellants, *v.*The Pennsylvania Fire Insurance Co. of Philadelphia, Respondent.

(City Court of New York, General Term,

October, 1900.)

Fire insurance — The jury, and not the court, should determine the damages.

Where, upon the trial of an action for a loss under a fire insurance policy, the court rules that the plaintiff is entitled to recover, and neither party requests the direction of a verdict, it is erroneous for the court itself to determine the damages, as the jury should determine them upon all the evidence.

Appeal from a judgment of the City Court of the city of New York, directed in favor of the plaintiffs against their objection and exception, and also from an order denying a motion for a new trial.

Mitchell L. Erlanger (George Richards, of counsel), for appellants.

Cardoza *&*Nathan (Edgar J. Nathan and Raymond Reubenstein, of counsel), for respondent.

Conlan, J.

The action was upon a policy of insurance, insuring the plaintiffs against loss by fire in the sum of $1,500. The trial court took from the consideration of the jury the right to ascertain and compute from the evidence the amount of damages which the plaintiffs were entitled to recover, after conceding to thorn such right of recovery. There was no request for a direction by either side.

In the exclusion of evidence of value as to property destroyed, and which, we think, was properly offered and of a sufficient character to entitle it to he considered by a jury in arriving at the amount of damage, the court itself undertook to and did apparently ascertain and fix a sum for less than the amount recoverable under the policy, and for the amount so ascertained directed a verdict. We think this was error. Upon all of the evidence, we are of the opinion that the jury should have been permitted to make its own calculations of the actual amount of damages sustained, and *638that a judgment entered upon a verdict such as was here found under the direction of' the court ought not to stand: Again, at the conclusion of the remarks of the learned, trial justice at the close of the plaintiffs’ case, the plaintiffs’ counsel requested the court that he he allowed, in view of the court’s opinion thus given, to offer additional proof upon the question of the value of the goods left with the plaintiffs for alterations and repairs, and which were on the premises at the time of the fire; and this was denied. We think the request was reasonable and should have been permitted, and that the evidence, as well, adduced on that precise question should have been left to the consideration of the jury. It is worthy of notice that the defendant offered- no witnesses on its behalf, so that we think that, upon all the evidence, the plaintiffs had the undoubted right to have the question of damages submitted to the jury, and without instructions as to the amount from the court at Trial Term.

Entertaining these views, we think the judgment and order ‘ appealed from must he reversed and a new trial ordered, with costs to the appellants to abide the event.

Fitzsimohs, Ch. J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.