Phoenix Insurance v. Simonson

Order denying plaintiff’s motion for summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, motion granted, with ten dollars costs, and the matter referred back to the Special Term for an assessment of the amount due the plaintiff, pursuant to subdivisions 4 and 8 of rule 113 of the Rules of Civil Practice, at which time the defendants may prove any deductions from the plaintiff’s claim to which they may be entitled, by reason of canceled policies or otherwise. In our opinion, the allegations in the complaint of conversion are surplusage and may be disregarded. Eliminating those allegations, the complaint states a cause of action on contract. Defendants admit an unliquidated indebtedness to the plaintiff. Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur.