Frank Pirrone, as Trustee for Orbitec Corporation, Bankrupt, Respondent, v. Centennial Insurance Co. et al., Appellants

Frank Pirrone, as Trustee for Orbitec Corporation, Bankrupt, Respondent, v. Centennial Insurance Co. et al., Appellants. [MAJORITY] Order, entered on July 7, 1967, denying defendants’ motion- for summary judgment, unanimously reversed; on the law, with $50 costs and disbursements to defendants-appellants, and motion granted. The order of the Superior Court of the State of California, permitting the defendants to pay into court the amount for which the fire loss was originally adjusted, by its very terms discharged each and all defendants from any and all liability to Orbitee Corporation on the insurance policies issued by defendants, Centennial, Boston and Standard. In accordance with said order the defendants deposited a total of $81,736.91 with the California Court. Recognizing that no action on the policies is any longer maintainable against these defendants, the plaintiff has drawn his complaint in the form of a fraud action. He attempts to spell out fraud by alleging that the defendants failed to make prompt payment after the settlement was agreed upon, imposed new and unnecessary requirements, withheld information and that defendants engaged in collusion in the bringing about of the California interpleader action, etc. The complaint is legally insufficient. The only cause of action which Orbitee Corporation had against these defendants was in contract on the insurance policies and that was terminated in the manner aforesaid. Concur— Eager, J. P., Steuer, Capozzoli, McGivern and Bastow, JJ.