| N.Y. App. Div. | Dec 23, 1955
Appeal by plaintiff from an order of the Supreme Court at Special Term, entered in Ulster County on March 7, 1955, which denied plaintiff’s motion for summary judgment and dismissed the complaint. Defendant-respondent issued a comprehensive liability insurance policy to plaintiff-appellant. While the policy was in force an action was brought against plaintiff by one Markle and his wife to restrain him from operating a dog kennel. Defendant refused to defend the action upon request, contending that the suit was not within the policy coverage. Plaintiff then retained private counsel, successfully defended the suit, and brings this action to recover legal expenses incurred therein and the legal expenses of the instant action. The pertinent provisions of the policy read: “ Coverage A-Liability To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and as damages because of injury or destruction of property, including the loss of use thereof. II. Defense, Settlement, Supplementary Payments As respects the insurance afforded by the other terms of this policy under Coverage A the company shall: (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof ”. The suit which the defendant refused to defend was an action in equity seeking only an injunction and did not “ seek damages ”. It is true that the Markle complaint alleged that plaintiffs’ property had depreciated in value and their health had been impaired as a basis for the injunctive relief sought, but neither the body of the complaint nor the prayer for relief alleged or asked for any money damages. The language of the policy is clear and unambiguous that defendant only insured for liability “ as damages ” and to defend actions “ seeking damages ”. There was nothing in the complaint in the Markle action which would or could entitle the plaintiff therein to damages. (Nelson v. Schrank, 273 A.D. 72" date_filed="1947-12-29" court="N.Y. App. Div." case_name="Nelson v. Schrank">273 App. Div. 72; Jackson v. Strong, 222 N.Y. 149" date_filed="1917-12-11" court="NY" case_name="Jackson v. . Strong">222 N. Y. 149.) Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.