Opinion
June, 1935.
Plaintiff, appellant, claims to have suffered personal injuries and that his car was damaged by reason of the negligence of the defendant, respondent, Muller. At the instance of an employee of defendant casualty company, acting as agent for both defendants, he executed a general release, and accepted $275 in full settlement. This sum equalled the doctor's and hospital bills and lost earnings only. Plaintiff claims that this employee fraudulently represented that defendant Muller's insurance policy covered merely these items, and that the release was conditional, permitting plaintiff to proceed against defendant Muller for personal injuries and property damage, and that Muller was financially irresponsible. Plaintiff sues both defendants to recover damages occasioned by the fraud. Defendant Muller moved to compel plaintiff to separately state and number two causes of action, and to strike out the Hardware Mutual Casualty Company as a party defendant, and from an order granting the motion this appeal is taken. The complaint alleges negligence on the part of defendant Muller, resulting in plaintiff's injuries, his own freedom from contributory negligence, and the acts of fraud set forth above. These allegations are necessary to enable the jury to determine what would have been a fair settlement and to deduct therefrom the amount actually received, to reach a verdict. The complaint alleges but one cause of action, namely, in fraud. Order reversed on the law and the facts, with ten dollars costs and disbursements, and defendant's motion denied, with ten dollars costs, with leave to the defendants to answer within ten days from the entry of the order herein. ( Ishie v. Norton Co., 183 App. Div. 94; Urtz v. N.Y.C. H.R.R.R. Co., 202 N.Y. 170; Duquette v. New York Central H.R.R.R. Co., 137 App. Div. 412.) Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur.