Merchants Mutual Insurance v. Magee

Appellate Division of the Supreme Court of New York

Merchants Mutual Insurance v. Magee

29 A.D.2d 841, 287 N.Y.S.2d 477, 1968 N.Y. App. Div. LEXIS 4586

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

DecidedFebruary 22, 1968

StatusPublished

This text of 29 A.D.2d 841 (Merchants Mutual Insurance v. Magee) 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

Merchants Mutual Insurance v. Magee, 29 A.D.2d 841, 287 N.Y.S.2d 477, 1968 N.Y. App. Div. LEXIS 4586 (N.Y. Ct. App. 1968).

Pincite

Opinion

Order unanimously modified, without costs, to the extent of remanding the case to Erie Special Term for assessment of damages upon notice to defendant. Memorandum: Special Term correctly decided that appellant failed to excuse his default and also failed to show facts which would constitute a meritorious defense. In view of defendant’s claim that plaintiff’s complaint did not state a claim for a sum certain or which by computation could be made certain because it failed to allege the amount of commissions and charges to be deducted from premiums collected, Special Term, in a proper exercise of discretion, should have made a reassessment of damages upon notice to defendant. (Appeal from order of Erie Special Term denying motion to open -default.) Present — Williams, P. J., Bastow, Marsh, Witmer and Henry, JJ.

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Order unanimously modified, without costs, to the extent of remanding the case to Erie Special Term for assessment of damages upon notice to defendant. Memorandum: Special Term correctly decided that appellant failed to excuse his default and also failed to show facts which would constitute a meritorious defense. In view of defendant’s claim that plaintiff’s complaint did not state a claim for a sum certain or which by computation could be made certain because it failed to allege the amount of commissions and charges to be deducted from premiums collected, Special Term, in a proper exercise of discretion, should have made a reassessment of damages upon notice to defendant. (Appeal from order of Erie Special Term denying motion to open -default.) Present — Williams, P. J., Bastow, Marsh, Witmer and Henry, JJ.

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Bluebook (online)

29 A.D.2d 841, 287 N.Y.S.2d 477, 1968 N.Y. App. Div. LEXIS 4586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merchants-mutual-insurance-v-magee-nyappdiv-1968.