Richardson v. Brainard

254 A.D. 631, 3 N.Y.S.2d 244, 1938 N.Y. App. Div. LEXIS 6784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1938
• Docket: Appeal No. 3
• Status: Published

Opinion

Order modified on the law and the facts as matter of discretion, and as modified affirmed, without costs of this appeal to any party. Memorandum: The plaintiff Hotel Syracuse, Inc., is stricken out as a party plaintiff for the reasons specified in the memorandum decision in Richardson v. Brainard-Powers Corporation, No. 2 {ante, p. 631), decided herewith; and the motion in relation to paragraph 3 is denied because the defendants are not required to answer the specific allegations contained in the complaint in the action of Hotel Syracuse, Inc., v. Roy P. Brainard annexed to the complaint in this action. The only question as to this annexed complaint is whether it is the complaint in the action upon which the judgment obtained by the Hotel Syracuse, Inc., v. Brainard was recovered. It is not necessary to determine now what relief the plaintiff may be entitled to. We are not informed by the complaint in this action whether the outstanding indebtedness of defendant Roy P. Brainard antedates the enactment of section 55-a of the Insurance Law or even when the policies were issued. Therefore it does not appear that Addis v. Selig (264 N. Y. 274) and Matter of Gordon (90 F. [2d] 583) are apposite. Even if they are not applicable as precedents, there is enough in the complaint to bring the case within the provision in section 55-a of the Insurance Law, and entitle the plaintiff to some relief. All concur. (The order denies defendants’ motion to strike out party plaintiff and to dismiss the complaint.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.