Opinion
December 9, 1957
In an action to recover on an extended coverage indorsement of a fire insurance policy for damages to a dwelling, allegedly caused by windstorm, the appeal is from an order granting respondent's motion to vacate a notice to examine her before trial, and denying appellant's cross motion to amend its answer. Order reversed, without costs, appellant's cross motion granted, without costs, and respondent's motion for alternative relief, by way of modification of the notice, granted, without costs, to the extent of (a) striking from item "1" thereof the portion of such item specifically objected to by respondent, and (b) adding to item "2" thereof a provision that examination thereunder shall be limited to inquiry as to evidence which will be relevant and material in support of appellant's claim that respondent has not performed the conditions of the policy, as specified in appellant's cross notice of motion to amend its answer. The record does not disclose that when the answer was served appellant knew of the matters sought to be alleged by the amendment of said answer, or that respondent will be unduly prejudiced by the delay incident to the amendment of the answer and an examination of respondent with respect to the issues thereby raised. Although the disposition of this action has been unduly delayed, both parties are in some degree responsible therefor and, under the circumstances disclosed, appellant should be given an opportunity to correct its pleading and to prepare for trial. In our opinion, however, inquiry as to estimates received by respondent and as to nonperformance of the conditions of the policy, other than those which will be specified in the amended answer, is neither necessary nor proper. The amended answer should be promptly served and the examination of respondent should proceed without delay. Nolan, P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur. Settle order on notice.