Contracts · MBE-tested
Ell Dee Clothing Co., Inc., Appellant, v. Frederick A. Marsh, Respondent
220 A.D. 701·New York Supreme Court, Appellate Division·1927·NY
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Opinion
First Department,
April, 1927.
Ell Dee Clothing Co., Inc., Appellant, v. Frederick A. Marsh, Respondent.
Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on July 21, -1926, upon the dismissal of the complaint, by direction of the court at the close of the plaintiff’s ease upon a trial at the New York Trial Term.
[MAJORITY — Per Curiam.]
Per Curiam.
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.