Opinion
March 7, 1949.
Appeal from City Court of the City of New York, Kings County.
Present — Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ. [See post, p. 770.]
The action was brought to recover for legal fees and expenses incurred by reason of appellant's failure and refusal to defend an action brought against respondent in the Supreme Court, New York County, by a former tenant in respondent's apartment house. In such action, respondent's former tenant sought damages in two causes of action for an alleged wrongful arrest and malicious prosecution, and alleged that respondent and its employee had forcibly detained him and removed him from his apartment, and that by "reason of the premises" he had suffered, inter alia, pain and injury to his body, consisting of contusions and abrasions, and severe shock to his nervous system. By its policy, appellant agreed to defend respondent in any suit against it alleging bodily injuries sustained by any person, caused by accident and arising out of the ownership, maintenance or use of respondent's apartment house. The policy also provided that assault and battery should be deemed to be an accident unless committed by or at the direction of the insured. Order unanimously affirmed, with costs. The pleadings in the action brought by respondent's former tenant sufficiently alleged, inter alia, a claim for damages against respondent for bodily injuries caused by accident, within the meaning of appellant's policy; and on appellant's refusal to defend such action, insofar as it related to such claim, respondent is entitled to recover his necessary expenses, insofar as they were incurred in such defense, to be determined on an assessment of damages as directed by the City Court.