Opinion
December 19, 1957
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, JOSEPH A. BOCCIA, J.
Eli H. Mellan for appellants.
Hyman Herman for respondent.
Appeal from two orders of the Municipal Court which (1) denied defendants' motion for summary judgment and (2) allowed plaintiff to serve a supplemental summons and amended complaint upon an additional defendant. According to the complaint and the proposed amended complaint plaintiff seeks recovery for services rendered as an insurance broker to the defendants. Such an action must be based on a writing clearly stating the services to be rendered and the compensation to be paid. Admittedly, there is no such writing and the action is barred (Insurance Law, § 129). However, the affidavits indicate that what plaintiff really intends is an action based on a tortious or fraudulent scheme to prevent plaintiff from recovering commissions earned from an insurance company rather than from defendants. Whether or not all the elements requisite to such an action are present, we have no way of knowing, as neither the pleadings nor the affidavits are designed to bring them out. If they do exist plaintiff may, if so advised, frame his action along those lines. It is to be noted that such complaint will date from the time of its service and we do not at this time express any opinion as to its validity or as to any defenses to it. Said complaint with a supplemental summons may also be served on the proposed additional defendant.
Accordingly, the order denying defendants' motion for summary judgment should be reversed and motion granted to the extent of dismissing the complaint herein with leave to plaintiff to serve an amended complaint as indicated above, said complaint to be served within 10 days of the service of copy of the order with notice of entry and upon payment of $20 costs; the order granting plaintiff's motion to serve a supplemental summons and amended complaint upon Henry H. Nitzberg should be modified to the extent that permission to serve the same is conditioned upon compliance with service of an amended complaint in the form and under the terms above set out on the defendants herein, the said amended complaint to be served on such proposed additional defendant to be in the same form, and as so modified affirmed, without costs.
HOFSTADTER, STEUER and HECHT, JJ., concur.
Orders reversed, etc.