Frank v. New York Casualty Co.

Appellate Division of the Supreme Court of New York

Frank v. New York Casualty Co.

2 A.D.2d 835, 155 N.Y.S.2d 497, 1956 N.Y. App. Div. LEXIS 4262

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 2, 1956

StatusPublished

This text of 2 A.D.2d 835 (Frank v. New York Casualty Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frank v. New York Casualty Co., 2 A.D.2d 835, 155 N.Y.S.2d 497, 1956 N.Y. App. Div. LEXIS 4262 (N.Y. Ct. App. 1956).

Pincite

Opinion

Per Curiam.

The order of the court below denying a motion to dismiss the

complaint for failure to state a cause of action is reversed, and the complaint dismissed with leave to replead.

Initially it may be pointed out that the complaint fails to allege the date of the renewal of the policy, the payment of the requisite premiums, the jurisdiction in which the alleged agreement was made and where the policy was delivered. These items should be pleaded since the accident took place in Canada and it cannot be determined from the complaint whether the alleged agreement was made in New York or Maine and whether the compensation acts of both States are involved. The complaint hopelessly intermingles allegations of a breach of contract and of a tort. In the absence of factual recitals with respect to the alleged contract and its breach, the allegations are merely eonclusory.

If an amended complaint is served, the policy and the contract, if in writing, should be made a part of the complaint or, in the alternative, set forth in such unambiguous and precise allegations that the cause or causes of action may be clearly ascertained.

Peck, P. J., Breitel, Botein, Cox and Frank, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss both causes of action contained in the complaint granted, with leave to replead.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The order of the court below denying a motion to dismiss the

complaint for failure to state a cause of action is reversed, and the complaint dismissed with leave to replead.

Initially it may be pointed out that the complaint fails to allege the date of the renewal of the policy, the payment of the requisite premiums, the jurisdiction in which the alleged agreement was made and where the policy was delivered. These items should be pleaded since the accident took place in Canada and it cannot be determined from the complaint whether the alleged agreement was made in New York or Maine and whether the compensation acts of both States are involved. The complaint hopelessly intermingles allegations of a breach of contract and of a tort. In the absence of factual recitals with respect to the alleged contract and its breach, the allegations are merely eonclusory.

If an amended complaint is served, the policy and the contract, if in writing, should be made a part of the complaint or, in the alternative, set forth in such unambiguous and precise allegations that the cause or causes of action may be clearly ascertained.

Peck, P. J., Breitel, Botein, Cox and Frank, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss both causes of action contained in the complaint granted, with leave to replead.

Cite This Page — Counsel Stack

Bluebook (online)

2 A.D.2d 835, 155 N.Y.S.2d 497, 1956 N.Y. App. Div. LEXIS 4262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-new-york-casualty-co-nyappdiv-1956.