Alliance Insurance v. Budlong 258 A.D. 776

Order affirmed, 'with ten dollars costs and disbursements. Memorandum: The counterclaim alleges the technical requisites for an action in deceit. Anticipated difficulty in proving damages does not warrant our saying there are no damages. We, therefore, are of the opinion that the issues raised by the reply call for a determination at the Trial Term. All concur, except Taylor, J., who dissents and votes for reversal on the ground that in his opinion there is no basis for damages. (The order denies plaintiff’s motion to strike out defendant’s answer and for summary judgment, in an action, on a contract.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.