Opinion
279 A.D. 910 110 N.Y.S.2d 633 SHERWIN CODY et al., Respondents, v. SAUL R. GAYNES et al., Appellants, et al., Defendants. Supreme Court of New York, Second Department. March 3, 1952
The amended complaint contains five causes of action. The first cause of action, on behalf of both the individual and corporate plaintiffs, is to recover on a written contract under which appellants agreed to assume and to protect plaintiffs from any claims on certain obligations incurred by plaintiffs, appellants having permitted judgment of foreclosure and sale to be entered on behalf of two lienors, under which judgment plaintiffs may be liable for a deficiency, and permitted other creditors to institute actions against plaintiffs, and failed to protect plaintiffs against the claims of the other creditors listed in the agreement. The second cause of action on behalf of both plaintiffs is to recover on another provision of the written contract under which appellants agreed to assume and protect plaintiffs against any claims on account of an agreement by which plaintiffs were to make certain street improvements and on account of a bond filed by the individual plaintiff to insure performance of those improvements. The third cause of action on behalf of both plaintiffs is to declare that none of the defendants has any right, title or interest in certain treasury bonds filed with the surety company which had written the performance bond mentioned in the second cause of action. The fourth cause of action on behalf of the individual plaintiff is to recover damages because attorneys hired by appellants to represent plaintiffs did not properly protect the rights of the individual plaintiff, with the result that his house was improperly sold under a judgment. The fifth cause of action has been withdrawn. Appellants moved to dismiss each of the causes of action for insufficiency or, in the alternative, if the motion is denied with respect to the fourth cause of action, to strike out as scandalous paragraph 'Thirty-Fourth' of the complaint. On the argument of the motion below, appellants withdrew the motion with respect to the first cause of action of the individual plaintiff. Special Term denied the balance of the motion. Order modified on the law by deleting the words 'be denied' after the word 'motion' and by adding thereto the following: 'to dismiss for insufficiency be denied as to the third and fourth causes of action of the individual plaintiff, granted as to the second cause of action of the individual plaintiff, and granted as to the first, second, and third causes of action of the corporate plaintiff; the fifth cause of action is withdrawn; and the motion to strike out as scandalous paragraph 'Thirty-Fourth' of the complaint is denied.' As so modified, the order is affirmed, with $10 costs and disbursements to appellants, with leave to plaintiffs to plead over, if so advised, within ten days after the entry of the order hereon. The first cause of action of the corporate plaintiff and the second cause of action on behalf of both plaintiffs is based on an agreement to protect plaintiffs 'from' and 'against' certain claims. An agreement to hold plaintiffs harmless from claims constitutes a promise to indemnify against loss rather than a promise to indemnify against liability and, in the absence of an allegation of actual loss, a cause of action is insufficient. ( Fredel v. Greene, 278 A.D. 579, affd. 302 N.Y. 859.) The third cause of action of the corporate plaintiff is insufficient because there is no allegation that the corporate plaintiff has any interest in the bonds.
Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.