Levbarg v. Travelers Insurance

257 A.D. 852, 12 N.Y.S.2d 498, 1939 N.Y. App. Div. LEXIS 8168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1939
• Status: Published

Opinion

Order denying defendant’s motion, made pursuant to rule 103 of the Rules of Civil Practice, to strike from paragraph “ Tenth ” of the amended complaint the words “ and subsequent to,” reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice, however, to an application for permission to serve a supplemental complaint pursuant to Civil Practice Act, section 245-b. We are of opinion that, in an action brought by plaintiff against the defendant insurance company to recover benefits for total and permanent disability under policies of life insurance, the service of an amended complaint for the purpose of “ bringing the claim up to date,” as plaintiff states in his brief, pursuant to an order granting such relief, but which complaint contains allegations of facts which are a condition precedent to performance by the defendant in any event, may not be justified by invoking the provisions of the Civil Practice Act (§ 245-b). Relief under that section may be justified only when application is made pursuant to its provisions in order that it may be granted only upon appropriate terms, such, for instance, as granting permission to the “ adverse party to withdraw his defense to the action or counterclaim and to satisfy the claim without payment of any costs, disbursements or interest. In any case the court may impose such other terms as may be just and proper.” That is not this case. Lazansky, P. J., Hagarty, Adel and Close, JJ., concur; Carswell, J., dissents and votes to affirm.