Opinion
June 2, 1933.
Appeal from Supreme Court, First Department.
Samuel A. Berger of counsel [ David A. Ticktin and Milton Adler with him on the brief; Powers, Kaplan Berger, attorneys], for the appellants.
Joseph J. Mack of counsel [ A. Louis Oresman, attorney], for the respondents.
Present — FINCH, P.J., MERRELL, McAVOY, MARTIN and TOWNLEY, JJ.
These appeals present the same questions of law. We are of the opinion that the affidavits in opposition to the motion of the plaintiffs in each case for summary judgment presented issues requiring the determination thereof at a trial. The defendant in each case has presented affidavits to the effect that the adjustment of the fire loss, the giving of the draft by the defendant in the action brought by the plaintiffs against Girard Fire and Marine Insurance Company, and the alleged agreement of the defendant Lincoln Fire Insurance Company of New York to pay its proportionate share of the loss as adjusted, were procured through the fraudulent acts and representations of the plaintiffs. The defenses alleged in the answers of the defendants, if true, are a complete bar to a recovery on the part of the plaintiffs.
We are, further, of the opinion that the Appellate Term erred in denying the motion of the defendant in each case to amend its answer by alleging the offer to return to the plaintiffs the moneys received by the defendant from the sale of the property taken over pursuant to the alleged settlement agreement, and that such leave to amend should now be granted by this court, pursuant to the provisions of section 111 of the Civil Practice Act.
The determination in each case should be reversed, with twenty dollars costs and disbursements in this court, and with ten dollars costs and disbursements in the Appellate Term, and the orders of the City Court affirmed.
Determinations reversed, with twenty dollars costs and disbursements in this court, and ten dollars costs and disbursements in the Appellate Term, and orders of the City Court affirmed.