#### Samuel Appel, Plaintiff, *v.*The People’s Surety Co. of New York, Defendant.

(City Court of New York, Special Term,

March, 1910.)

Pleading—Motions relating to pleadings—Motion to strike out matter from pleading — Grounds — Scandalous and impertinent matter.

Where, in an action on an accident policy issued by defendant insuring plaintiff against suits for personal injuries, the complaint alleges that, upon the bringing of such an action against him, plaintiff gave notice thereof to defendant with the fullest information obtainable at the time, furnished defendant with the names of the material witnesses for the defense, all of whom were in attendance upon the trial which was conducted by an attorney unfamiliar with the. law and the facts who failed to call plaintiff’s material witness or properly or fully examine the plaintiff as a witness upon said trial so as to elicit from him all facts within his knowledge bearing upon the defense to said action and conducted the defense in so careless and indifferent a manner that judgment wias given against plaintiff, such allegations may not be stricken out on motion as scandalous, where plaintiff to sustain an action under the policy must prove that defendant negligently defended the personal injury action.

Motion to strike out a certain paragraph of the complaint,

Samuel Bitterman, for plaintiff.

Edward M. Grout and Paul Grout, for defendant.

Finelite, J.

This is a motion to strike out the sixth paragraph of the first cause of action alleged in the complaint as scandalous and irrelevant. The action is brought to recover damages by reason of the defendant’s neglecting to properly defend an action which was brought against the plaintiff herein under an accident insurance policy issued to the plaintiff. By the conditions of said policy the said defendant agreed to indemnify the plaintiff, the assured herein, for a period of twelve months, beginning on the 7th day of February, 1907, noon, and ending on the 7th day of February,' 1908, noon, and further conditioned that the policy should *563only cover loss covered by and liability for any claim against the assured as the result of the risks specified in the contract or contracts annexed to said policy, and was issued and aecepted upon the condition that all the provisions printed on > the slip or slips attached to the policy were accepted ■ and should be fulfilled by the assured as part of this ; contract as fully as if they were recited at length ¡over, the signature to said policy affixed. Under 1 condition “ D ” of the slips annexed to said policy ■ it reads: “ If thereafter any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy the assured shall immediately forward to the company’s home office every summons or other process as soon as the same shall have been served on him, ■ and the company will, at its own cost, defend such suit in the 1 name and on behalf of the assured, unless the company shall ¡ elect to settle the same or to pay the assured the indemnity 1 provided for in condition *‘A’*hereof.” That on or about the ■ 19th day of ¡November, 1907,and while said policy was in full ■ force and effect, an accident happened to one Bessie Gold, a tenant in the premises ¡NTos. 105 and 107 Orchard street, in ,the borough of Manhattan, city of Mew York, which are the ¡ premises mentioned in and covered by the said policy of insurance, said action being brought to recover damages, for ■ injuries received by said Bessie Gold, sustained by falling ■ upon defective stairs within said premises, which was within the risks specified in said contract of insurance, and a suit ¡ was brought by said Bessie Gold against the plaintiff herein 1 in the Supreme Court of the State of Mew York for such injuries. That upon the occurrence of said accident this' plaintiff immediately gave written notice thereof to the defendant, with the fullest information obtainable at the time, and that ■the plaintiff forwarded said summons and complaint in said ■ action to the defendant’s home office, which was served upon him, and pursuant to said policy defendant assumed charge ■ and control of the defense of said action and caused an answer to be prepared and served in said action and defended the ¡same, while this plaintiff duly and in accordance with said policy assisted in the preparation of the said case for trial and *564aided the company herein in securing information, and evidence and the attendance of witnesses and furnished names and procured statements of witnesses. The allegation of the complaint which defendant now moves to strike out as scandalous and irrelevant is the sixth paragraph thereof, which reads as follows: *“ Sixth.*On information and belief, that the defendant did not conduct the defense of said action in a proper and skillful and diligent manner, and permitted its attorneys, whom it retained in accordance with said policy to defend the said action, to be represented at the trial thereof by a lawyer other than the attorney of record and who had little knowledge of the facts in the case, and who was unprepared for the trial and not familiar with the propositions of law and of the facts, and that said lawyer who tried said case did not call all of the witnesses procured by this plaintiff for the defense, and did not examine this plaintiff fully for the defense; and although this plaintiff had furnished the attorney of record for the defendant in said action with the names and statements of at least six (6) witnesses who were material and necessary for the defense of said action, and all of whom were in attendance at the trial of said action, the said lawyer failed and refused to call any of said witnesses, except one, upon the trial of said action, and did not introduce the testimony of any of said other witnesses, and did not properly and fully examine this plaintiff upon the trial of said action, and did not elicit from this plaintiff on the trial of said action all facts within his knowledge bearing upon the defense | of said action by proper questions, and said lawyer did not carefully conduct such defense, but, on the contrary, con- , ducted such defense and trial in a careless and indifferent manner, and that the defendant wholly failed and neglected to carry out the provisions of said contract and to properly ■ and diligently defend such action on behalf of this plaintiff, ■ and that by reason thereof the said trial resulted in a judg- ■ ment against this plaintiff, in favor of said Bessie Gold ; for the sum of one thousand nine hundred and forty-eight and 36-100 dollars (1,948.36) damages and costs, which : judgment was duly entered and docketed in the office of the Clerk of New York County on January 7, 1910.” *565From the reading of this paragraph it will be necessary for the plaintiff to prove on the trial hereof that the defendant did not fulfill its contract and did not properly defend the action, and that a judgment was entered against said plaintiff in said action on account of the breach of the contract made with the plaintiff. He would have to prove, in addition, to recover in this action under the said policy that the attorney representing the plaintiff in said action was negligent in not properly producing, upon the trial of the said action wherein the plaintiff was sued, the proof that was supplied to said company and the witnesses who would have testified in favor of the said plaintiff as the defendant in said action, which proof was furnished by the said plaintiff to the said company, and which the said company refused to make use of on the trial, and which caused and resulted in a judgment against this plaintiff as the defendant in said action. This action as brought, and as appears from the said paragraph in dispute and the facts therein alleged, is not an action in tort, but, on the contrary, it is a breach of contract which may sound in tort but is an action to recover damages. I therefore conclude that said paragraph is not scandalous and irrelevant. The motion to strike out the same must therefore be denied, and defendant may have its time extended six days within which to plead herein after the service of the order on it to be entered herein.

Motion denied.