Opinion
March 29, 1960
Order granting defendant's motion pursuant to rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act, for judgment on the pleadings dismissing the complaint for insufficiency, reversed on the law and in the exercise of discretion, and the motion denied, with costs to appellant. The complaint was dismissed by Special Term on the ground that it failed to allege the giving of prompt notice to defendant. Even assuming an obligation on the part of plaintiff to give notice, we do not find on the face of the complaint or exhibits any indication that plaintiff failed to give prompt notice of the accident. The complaint alleges due performance of all of the provisions of the policy. We do not pass on or consider any other matter except the sufficiency of the complaint on the question of notice. Order [denying plaintiffs cross motion for summary judgment] unanimously affirmed, with $20 costs and disbursements to the respondent.
Concur — Botein, P.J., Rabin, M.M. Frank, Valente and Stevens, JJ.