Ell Dee Clothing Co. v. Marsh
220 A.D. 701 | N.Y. App. Div. | 1927
This judgment must be affirmed for the reason that the plaintiff cannot recover on the cause of action set forth in the complaint. The plaintiff may have a cause of action against the defendant for breach of contract to insure (Siegel v. Spear & Co., 234 N. Y. 479; Posnick v. Stedman, 219 App. Div. 610), or for fraud or for falsely representing that he was agent for an insurance company. The plaintiff, being familiar with the facts, will be in a position to decide which cause of action, if any, should be brought against the defendant. The judgment should, therefore, be affirmed, with costs. Present • — • Dowling, P. J., Merrell, MeAvoy, Martin and Proskauer, JJ. Judgment affirmed, with costs.