Barbarossa v. American Insurance Co. of Newark , 251 A.D. 834 ( 1937 )

In this action to recover for fire loss under an insurance policy, there was an appraisal of the loss, signed by the umpire and the appraiser appointed by the defendant. It is claimed that the appraiser appointed by the defendant was not a disinterested person, but was unfair and prejudiced, and that the damage was fixed at less than its value by fraudulent and collusive acts. The plaintiff gave notice of an examination ,of the appraiser before trial as a party and as defendant’s agent and employee. The defendant moved to vacate the notice of examination, but the grounds stated did not include the ground that the appraiser was not an employee or agent of the defendant. The motion to vacate was denied on the ground that the defendant did not state in its notice of motion the grounds that it advanced on the argument, as provided in rule 124 of the Rules of Civil Practice. On motion for reargument, the question was raised that the person sought to be examined was not a party, but the motion to vacate was denied. Order dated March 24, 1937, denying the motion, reversed on the law and the facts, without costs, and motion granted, without costs, without prejudice to the right of plaintiff to move to examine Rafner as a witness. Appeal from the order of March fourth dismissed, as that order has been superseded by the order of March twenty-fourth. Lazansky, P. J., Hagarty, Davis and Johnston, JJ., concur; Close, J., not voting.