Johnson v. Metropolitan Casualty Insurance

Judgment and order affirmed, without costs of this appeal to either party. Motion to amend complaint denied, without costs. Memorandum: The plaintiff fails to allege that he either restored or offered to restore the $600 received by him from the defendant under the alleged coercive settlement. The absence of such an allegation is fatal. The offer in the complaint to have the $600 deducted from any recovery is not the equivalent of an offer to restore. A settlement induced by coercion is not necessarily void. Such a settlement may be ratified by retaining benefits received thereunder. Plaintiff does not allege that he was induced by defendant’s fraud to enter into the alleged settlement. The complaint fails to state a cause of action and was properly dismissed. (Oregon Pacific Railroad Co. v. Forrest, 128 N. Y. 83; Gilbert v. Rothschild, 280 id. 66; Joslyn v. Empire State Degree of Honor, 204 id. 621.) The proposed amended complaint likewise fails to state a cause of action and the motion for leave to amend the same should be denied. All concur. (The judgment dismisses plaintiff’s complaint in an action under an insurance policy.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.