Maw v. Butler & Smith, Inc.

• Decision Date: 16 October 1961
• Parties: Carlyle E. MAW, Jr., Plaintiff, v. BUTLER & SMITH, INC., and Bayerische Motoren Werke, A. G., Defendants.
• Court: New York City Municipal Court

Page 6

221 N.Y.S.2d 6

Carlyle E. MAW, Jr., Plaintiff, v. BUTLER & SMITH, INC., and Bayerische Motoren Werke, A. G., Defendants.

Municipal Court of City of New York, Borough of Manhattan,

Sixth District.

Oct. 16, 1961.

Cravath, Swaine & Moore, New York City, Harry H. Voibt, New York City, of counsel, for plaintiff.

Nicholas Ujlaki, New York City, for defendant Butler & Smith, Inc . and especially for defendant Bayerische Motoren Werke, A. G.

CHARLES GOLD, Justice.

The defendant, Bayerische Motoren Werke, A. G. (B.M.W.), a foreign corporation, moves to vacate a warrant of attachment obtained by the plaintiff and urges, among others, the contention that the complaint does not set forth a cause of action.

The complaint alleges as against the movant that B.M.W. agreed to sell to the plaintiff a motorcycle and an insurance policy thereon including coverage against the 'usual risks of fire and theft', by adopting and ratifying an agreement previously made by plaintiff and the codefendant in the United States; that both were delivered in Germany; that movant, in pretended compliance, delivered a policy printed in German and issued by Gerling & Co., a German corporation; that the motorcycle was stolen in Greece; that a prompt and detailed report and claim were filed; that the insurer, by letter, advised plaintiff that the policy did not cover 'the theft of the motorcycle' and refused to pay the claim; that plaintiff has fully performed on his part.

A second cause of action reiterates all of the foregoing and adds allegations of scienter and wilful and fraudulent misrepresentations as to the coverage given by the policy; that the plaintiff had no knowledge that the policy would not include usual theft coverage; that there was intention to induce reliance, and that there was reliance.

The third cause of action reiterates the allegations of the first cause of action, and adds allegations of negligence in making representations 'that plaintiff would receive a policy of insurance including standard theft coverage', and reiterates the allegations pertaining to intended inducement, reliance and lack of plaintiff's knowledge that the policy would not include 'usual theft coverage.'

The law is clear. Where it is shown that the plaintiff must ultimately fail, the warrant of attachment must be vacated. (Heller v. E. D. Sassoon Banking Co., 284 App.Div. 869, 134 N.Y.S.2d 58; Wulfsohn v. Russian Socialist Federated Soviet Republic, 234 N.Y. 372, 138 N.E. 24; Friedman v. Prescetti, 199 App.Div. 385, 192 N.Y.S . 55; American Swiss Potash Mining Corp. v. Brugger, Sup., 137 N.Y.S .2d 229--not reported officially; Ehag Eisenbahnwerte H. A. v. Banca Nationala A. R., 282 App.Div. 697, 121 N.Y.S.2d 783.)

Viewed in the most favorable light, neither the complaint nor the affidavit submitted in support of the warrant of attachment state a cause of action against the movant. Indeed, read together, they do not spell out a cause of action.

The complaint fails to indicate by...