ELL DEE CLOTHING CO., INC. v. MARSH

Full title: ELL DEE CLOTHING CO., INC., Appellant, v. FREDERICK A. MARSH, Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 1, 1927

220 App. Div. 701 (N.Y. App. Div. 1927)

Opinion

April, 1927.

Appeal from Supreme Court, New York County.

Present — Dowling, P.J., Merrell, McAvoy, Martin and Proskauer, JJ. Judgment affirmed, with costs.

PER CURIAM.

This judgment must be affirmed for the reason that the plaintiff cannot recover on the cause of action set forth in the complaint. The plaintiff may have a cause of action against the defendant for breach of contract to insure ( Siegel v. Spear Co., 234 N.Y. 479; Posnick v. Stedman, 219 App. Div. 610), or for fraud or for falsely representing that he was agent for an insurance company. The plaintiff, being familiar with the facts, will be in a position to decide which cause of action, if any, should be brought against the defendant. The judgment should, therefore, be affirmed, with costs.