
    John Neapolitan, Appellant, v. Ætna Insurance Company, Respondent.
   Plaintiff has appealed from an order of the Trial Term of Supreme Court granting defendant’s motion for summary judgment. The complaint alleges that on September 5, 1942, defendant issued to plaintiff a policy of insurance by which it agreed to pay plaintiff for any damage to the automobile owned by him as a result of any collision, less the sum of $50. While the policy was in effect the car was damaged by collision with another automobile in an amount of $215. After proofs of loss were submitted to it, defendant demanded an appraisal in accordance with the terms of the policy, to which plaintiff agreed. After the appraisers were qualified and selected an arbiter, they found the actual loss to the car was $169 and deducted therefrom the sum of $50 under the deductible clause in the policy, maMng the amount to which plaintiff was entitled $119. A draft for this amount was duly tendered to the plaintiff and Ms attorney and it has been retained by them. Ho claim is made that there was any fraud in procuring the appraisal or that the appraisers acted improperly in any way. The claim of plaintiff is that the proof submitted on the motion'was insufficient to warrant the granting of the order and judgment appealed from, that plaintiff had no opportunity to file an answering affidavit, and that the issue should be tried before a jury. The court properly decided that defendant was entitled to a judgment dismissing the complaint. Order and judgment affirmed, with costs to defendant. All concur. [See 268 App. Div. 836.]  