Opinion
June, 1930.
Appeal from Supreme Court, New York County.
Present — Finch, Merrell, McAvoy, O'Malley and Sherman, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
On this appeal, as in opposition to another motion to compel him to separately state and number, the plaintiff disavows any alleged cause of action based upon the contract of insurance and proceeds upon the theory of conversion alone. To this theory he will be held on the trial. All of the defenses are, therefore, insufficient, since they relate to alleged breaches of the contract of insurance. While the sixth defense, also alleged as a counterclaim, states a good cause of action, it may not be interposed as a counterclaim to this action based on conversion, as it does not fall within the provisions of section 266 of the Civil Practice Act. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.