Opinion
October 19, 1961
Order, entered on January 20, 1961, denying defendants' motion to dismiss the complaint for legal insufficiency in action for declaratory judgment, unanimously reversed, on the law, with $20 costs and disbursements to defendants-appellants, the motion granted, and the complaint dismissed, with leave, in the exercise of discretion, to plaintiff to serve an amended complaint within 20 days after service of the order herein with notice of entry. The complaint violates the provisions of section 241 of the Civil Practice Act in failing to contain a plain and concise statement of the material facts. Instead it contains a detailed recital of the evidentiary facts upon which, presumably, plaintiff intends to rely. Moreover, the complaint in alleging in its twenty-third paragraph that plaintiff denies liability under its policy upon grounds, "among others", that defendant Paul Hodgkinson was not a resident of the household of the named insured fails to tender an issue which would be determinative of the liabilities between the parties. This does not satisfy the requirements in an action for declaratory judgment ( Smith v. Western Union Tel. Co., 276 App. Div. 210, 213, affd. 302 N.Y. 683).
Concur — Botein, P.J., Breitel, Rabin, Stevens and Eager, JJ.