Tindall v. Continental Insurance

255 A.D. 939, 8 N.Y.S.2d 762, 1938 N.Y. App. Div. LEXIS 5912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 23, 1938
• Status: Published

Opinion

Order modified by striking ont the provision for costs and imposing as terms for the granting of the motion the payment of ten dollars costs, and as modified affirmed, without costs of this appeal to either party. Memorandum: The original complaint leaves us in some doubt as to whether a cause of action on the policy as well as one on the alleged agreement of settlement was intended to be pleaded. However, when we consider the answer of the defendant which sets up as a defense the limitation of twelve months contained in the policy which is applicable only to a cause of action based upon the policy, we reach the conclusion that such a cause of action was at least adumbrated in the original complaint, and, therefore, that the proposed amendment does not definitely set up a new cause of action. For this reason we think the court should have imposed as terms for the granting of the motion merely the costs of the motion itself. All concur. . (The order grants a motion for leave to amend a complaint in an action on a fire insurance policy.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ. [See 252 App. Div. 47.]