Joseph A. McAleenan, Respondent, Appellant, v. Massachusetts Bonding and Insurance Company, Appellant, Respondent

Appeal by plaintiff, by permission, from so much of an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1916, which reversed an order of Special Term in so far as it granted, plaintiff judgment on the first cause of action and granted defendant’s motion for judgment in its favor. Appeal by defendant, by permission, from so much of the same order as affirmed so much of an order of Special Term as granted plaintiff judgment on the second cause of action. The action was brought on a policy of indemnity insurance. As his first cause of action, plaintiff seeks to recover an amount paid by him to satisfy a judgment for damages for death of a person through an accident covered by the policy. For a second cause of action, plaintiff alleges that a verdict having been recovered against him for the damages aforesaid, the defendant agreed to appeal from the judgment and assured plaintiff that an appeal had been taken, but without the knowledge of plaintiff permitted the time within which to take an appeal to expire without taking said appeal, and demands judgment for the negligence of the defendant in respect thereto.

The following questions were certified:

“ 1. Are the facts alleged as a first cause of action in the complaint herein sufficient to constitute a cause of action against the defendant ?

“ 2. Are the facts alleged as a second cause of action in the complaint herein sufficient to constitute a cause of action against the defendant ? ”