(82 Misc. Rep. 404.) KRICKL v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited. (Supreme Court, Appellate Term, First Department. October 23, 1913.) INSURANCE (§ 632*)-BURGLARY INSURANCE-ACTION—ALLEGATIONS OF COM PLAINT. The complaint in an action on a larceny insurance policy was fatally defective for not alleging that the property stolen was that covered by the policy. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1319; Dec. Dig. § 632.*] Appeal from City Court of New York, Special Term. Action by Charles A. Krickl against the Ocean Accident & Guarantee Corporation, Limited. From an order of the City Court denying defendant's motion for judgment on the pleadings, it appeals. Order reversed, and motion granted. Argued October term, 1913, before SEABURY, GUY, and BIJUR, JJ. Joseph L. Prager, of New York City (Sidney S. Levine, of New York City, of counsel), for appellant. George Young Bauchle, of New York City, for respondent. SEABURY, J. This is an appeal from an order denying defendant's motion for judgment on the pleadings. The action was brought to recover upon a policy insuring plaintiff against loss by burglary, larceny, or theft of certain articles mentioned in said policy, a copy of which is annexed to the complaint. The complaint alleges that while said contract of insurance was in force and effect "certain property belonging to plaintiff's wife" was stolen. The court below denied the motion, on the ground that the plaintiff was entitled under the policy to bring the action in his own name, even though the property belonged to his wife. The terms of the policy justified this ruling. The vice of the complaint lies in its failure to allege that the property stolen was the property covered by the policy of insurance. Such an allegation was essential to the statement of a cause of action. Rodi v. President, etc., 19 N. Y. Super. Ct. 23; Krank v. Continental Insurance Co., 50 Misc. Rep. 144, 100 N. Y. Supp. 399. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs, with leave to plaintiff to serve an amended complaint within six days after service of a copy of the order entered herewith, with notice of entry in the City Court, upon payment of costs in this court and the court below. All concur. (82 Misc. Rep. 400.) JAMES v. MARQUETTE. (Supreme Court, Appellate Term, First Department. October 24, 1913.) ATTORNEY AND CLIENT (§ 192*)-ENFORCEMENT OF LIEN-PROCEEDINGS. The amount of the attorney's fee and the question as to how much has been paid by the client thereon cannot be determined summarily on a mo*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes tion by the attorney to enforce his lien for fees, but should be ascertained on reference. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 425427; Dec. Dig. § 192.*] Appeal from City Court of New York, Special Term. Action by Thomas James against Joseph R. Marquette, Jr. From an order of the City Court of New York denying a motion to open a default judgment, defendant appeals. Reversed, and motion granted. Argued October term, 1913, before SEABURY, GUY, and BIJUR, JJ. Abraham Kutz, of New York City, for appellant. Warren McConihe, of New York City, for respondent. BIJUR, J. As there is no claim that the default was suffered other than by the mere accident of defendant's attorney having been a few minutes late when the original motion came on to be heard, the order denying the present motion to open the default is not based on any ground in connection with the occurrence of the default, but on the theory that defendant's moving papers show no merit. With this view we are compelled to disagree. This motion was made by an attorney to enforce his lien by being permitted to issue execution to the amount of such lien, a stated sum, against the defendant, against whom judgment had been recovered in the action. The plaintiff has voluntarily paid the amount of the judgment to the plaintiff's present attorney. In the present state of the record, it appears that the attorney is entitled to enforce his lien; but both the amount of his fee and the question as to how much has been paid thereon cannot be determined summarily against the defendant, but should be ascertained upon a reference. Bailey v. Murphy, 136 N. Y. 50, 32 N. E. 627; Matter of Speranza, 186 N. Y. 280, 78 N. E. 1070. It should also be referred to a referee to ascertain whether, at the time when the moving party obtained an injunction against the plaintiff and his present attorney from disposing of any part of the proceeds of the judgment paid to them by defendant, either of them had any of these funds in hand. If they did, the moving party having consented to withdraw the motion in so far as it is directed against the plaintiff and his present attorney, the question will have to be decided whether he has not waived his lien against the defendant to that extent by such action. See Oishei v. Penn. R. R. Co., 101 App. Div. 473, 474, 91 N. Y. Supp. 1034. Order reversed, with $10 costs and disbursements to appellant, default of defendant opened, on payment of $10 costs, and an order of reference of the issues herein above set forth directed to be entered in the court below. All concur. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes FICKETT v. MARQUETTE. (Supreme Court, Appellate Term, First Department. October 23, 1913.) Appeal from City Court of New York, Special Term. Action by Zemro M. Fickett against Joseph R. Marquette, Jr. From an order denying defendant's motion to open a default, defendant appeals. Reversed, and default opened. Argued October term, 1913, before SEABURY, GUY, and BIJUR, JJ. Abraham Kutz, of New York City, for appellant. Warren McConihe, of New York City, for respondent. BIJUR, J. This appeal involves precisely the same considerations as order No. 25 (James v. Same, 143 N. Y. Supp. 750), except that the plaintiff is still alive, and is alleged by McConihe, the applicant, to reside in New Jersey and to be insolvent. The determination is therefore the same. Order reversed, with $10 costs and disbursements, default of defendant opened, on payment of $10 costs, and an order of reference of the issues referred to in the opinion in James v. This Defendant directed to be entered in the court below. All concur. (82 Misc. Rep. 402.) HEINE et al. v. WELLER. (Supreme Court, Appellate Term, First Department. October 23, 1913.) DISCOVERY (§ 32*)—STATUTORY PROVISIONS-VACATING Order-Grounds. The fact that a defendant denies the allegations of a complaint does not of itself deprive a plaintiff of the right to examine him before the trial, or furnish grounds for vacating an order for his examination. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 40; Dec. Dig. § 32.*] Appeal from City Court of New York, Special Term. Action by Arthur Heine and another against Henry J. Weller. From an order of the City Court, vacating an order for the defendant's examination before trial, plaintiffs appeal. Order reversed. Argued October term, 1913, before SEABURY, GUY, and BIJUR, JJ. Fixman, Lewis & Seligsberg, of New York City (Walter N. Seligsberg and Clarence M. Lewis, both of New York City, of counsel), for appellants. Louis Werner, of New York City (S. A. Lowenstein, of New York City, of counsel), for respondent. SEABURY, J. This is an appeal by plaintiffs from an order granting defendant's motion to vacate an order obtained upon the application of plaintiffs to examine the defendant before trial. The learned court below granted the motion, and vacated the order for defendant's examination because of the denial of the defendant in his answer and in the affidavit submitted upon the motion of all of the material allegations of the complaint. The fact that a defendant denies the allegations of the complaint does not of itself deprive the plaintiff of a right. to examine him before trial, or furnish any legal ground for vacating *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes an order for his examination. Istok v. Senderling, 118 App. Div. 162, 103 N. Y. Supp. 13; Straus v. Peck, 126 N. Y. Supp. 628. Order reversed, with $10 costs and disbursements, and motion to vacate order for defendant's examination denied, with $10 costs. All concur. MAGUIRE v. O. U. BEAN & CO., Inc. (Supreme Court, Appellate Term, First Department. October 23, 1913.) EXECUTION (§ 364*)-SUPPLEMENTARY PROCEEDINGS-ORDER FOR DELIVERY OF PROPERTY. Where one holds property under the terms of an overdue chattel mortgage from a judgment debtor, it cannot be said that the title thereto was not the subject of substantial dispute, and a restraining order could not be granted, under Code Civ. Proc. § 2447, allowing a supplemental order to require those holding property, the rightful possession of which by the judgment debtor is not substantially disputed, to deliver such property to the sheriff, to compel the delivery of such property. [Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1100, 1101; Dec. Dig. § 364.*] Appeal from City Court of New York, Special Term. Action by Samuel A. Maguire against Ó. Ü. Bean & Co., Incorporated. From an order of the City Court adjudging Charles Geely and Frederick Yung in contempt for disobedience to an order entered in supplementary proceedings, said Geely and Yung appeal. Order reversed. Argued October term, 1913, before SEABURY, GUY, and BIJUR, JJ. Nathan Burkan, of New York City, for appellants. PER CURIAM. This is an appeal from an order adjudging the appellants in contempt. The alleged contempt consisted in the act of the appellants in parting with property in their possession. It is claimed that this property belonged to the judgment debtor and that the appellants were restrained from parting with the same under the terms of an order in supplementary proceedings against the judgment debtor. The restraining order applied only to property belonging to the judgment debtor as to the title to which there was no substantial dispute. Code Civ. Proc. § 2447; First National Bank v. Gow, 139 App. Div. 576, 124 N. Y. Supp. 450-452. In this case it clearly appears that the appellants held the property under the terms of an overdue chattel mortgage from the judgment debtor. Under these circumstances, it cannot correctly be said that the title to the property in question was. not the subject of substantial dispute. It follows that the order must be reversed, with $10 costs and disbursements, and the motion to punish for contempt denied, with $10 costs. All concur. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 143 N.Y.S.-48 WHAMOND v. NORTH SIDE BOARD OF TRADE IN CITY OF NEW YORK. (Supreme Court, Appellate Term, First Department. October 23, 1913.) CONTRACTS (§ 337*) — ACTIONS FOR BREACHALLEGATION OF BREACH. COMPLAINT A complaint for breach of a contract, a copy of which was annexed thereto, for the publication of a booklet, which alleges that defendant abandoned and refused to perform the contract, does not state a cause of action, where the complaint and the contract do not show that the defendant was obligated to do any act which it has neglected or refused to perform. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1682-1690; Dec. Dig. § 337.*] Appeal from City Court of New York, Special Term. Action by Reginald Whamond against the North Side Board of Trade in the City of New York. From an order denying defendant's motion for judgment on the pleadings, defendant appeals. Order reversed. Argued October term, 1913, before SEABURY, GUY, and BIJUR, JJ. Cornelius J. Earley, of New York City, for appellant. GUY, J. This action is brought on an alleged contract, a copy of which is annexed to and made part of the complaint, for the publication of an illustrated and descriptive booklet of the Bronx. The complaint alleges that defendant is a membership corporation; that one Davis was chairman of its literature and publication committee; that plaintiff submitted its proposal to publish a booklet to the chairman of defendant's publication committee; that the committee recommended the acceptance of the proposal; that defendant then authorized the committee to accept the proposal; that the committee, through its chairman, for and on behalf of defendant, duly accepted the proposal, which it had authority to accept on defendant's behalf, and subsequently the defendant abandoned and refused to perform said contract. The answer admits the incorporation of defendant, that Davis was chairman of said committee, and that the committee recommended an acceptance of plaintiff's proposal, and denies all other allegations of the complaint. These facts, as alleged in the complaint, when read in connection with the contract, which is a part of the complaint, do not, however, set up a cause of action. Nowhere does it appear that by said contract defendant was obligated to do any act or perform any duty which it has neglected or refused to do or perform. There being no duty to perform, a mere allegation of refusal to perform does not constitute a cause of action. The order must therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to plaintiff to serve an amended complaint within six days upon payment of costs in this court and in the court below. All concur. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |