Opinion
Argued May 7, 1964
Decided June 4, 1964
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, KENNETH S. MacAFFER, J.
William E.J. Connor and Jean S. Toigo for appellant.
John J. Scully for respondent.
The agreement sued upon is too indefinite for enforcement insofar as it constitutes a promise by defendant to settle plaintiff's claim ( Welden v. Frankfort Gen. Ins. Co., 230 N.Y. 546; Wood v. AEtna Life Ins. Co., 224 App. Div. 628; Habgood v. Van Dyke Taxi Transfer, 128 Misc. 884, affd. 220 App. Div. 801; Harbot v. Pennsylvania R.R. Co., 44 F. Supp. 319) . Insofar as it provides that defendant pay plaintiff's remaining medical expenses, if any, sufficient certainty exists ( Wood v. AEtna Life Ins. Co., supra). Accordingly, a new trial should be ordered on that issue, with costs to abide the event.
Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE and SCILEPPI concur; Judge BERGAN taking no part.
Order modified in accordance with the opinion herein and a new trial granted, with costs to abide the event.