The opinion
Nolan, P. J.
(concurring). In my opinion the amended complaint sufficiently states a cause of action for the breach of a contract between respondent’s intestate and appellant. (Ellis v. Albany City Fire Ins. Co., 50 N. Y. 402 ; Ruggles v. American Central Ins. Co. of St. Louis, 114 N. Y. 415 ; Hicks v. British America Assur. Co., 162 N. Y. 284 ; Manchester v. Guardian Assur. Co., 151 N. Y. 88 ; Speronza v. Phoenix Mut. Life Ins. Co., 272 App. Div. 770.) I concur, however, in the conclusion that the amended complaint should have been dismissed on appellant’s motion pursuant to rule 107 of the Rules of Civil Practice.
Adel, Schmidt and Beldock, JJ., concur, with Murphy, J.; Nolan, P. J., concurs, in memorandum.
Order, insofar as appealed from, denying motion to dismiss the first and second causes of action in the amended complaint for insufficiency and for lack of writing, modified on the law by striking from the second ordering paragraph the word “ denied ” and by substituting therefor the word “ granted ”, and by striking therefrom the third ordering paragraph. As so modified, order affirmed, with $10 costs and disbursements to appellant.