
    Schencke Piano Company, Appellant, v. Philadelphia Casualty Company, Respondent.
    
      Schencke Piano Co. v. Philadelphia Casualty Co., 157 App. Div. 917, affirmed.
    (Argued October 12, 1915;
    decided October 26, 1915.)
    Appeal by plaintiff from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1913, affirming a judgment in favor of plaintiff entered upon a verdict directed by" the court upon the defendant’s offer of judgment in an action to recover under a policy of insurance the amount above the policy limit, which the plaintiff was obliged to pay in satisfaction of a judgment entered against it in an action for damages on account of personal injuries sustained by one of its employees. The full judgment was for $10,143.93, and the plaintiff’s trial expenses amounted to an additional $400. The insurance company paid $5,000, the amount .of the policy limit, leaving a balance of $5,543.94, which the plaintiff was obliged to pay and now seeks to recover. The theory is that the present defendant breached the policy contract in not making a certain settlement of the negligence action which it had the opportunity to make for an amount within the policy limit. It is not charged in the complaint with any fraud or bad faith for its failure to make the settlement, but only for negligence or lack of due diligence.
    
      Florence J. Sullivan for appellant.
    
      John Vernou Bouvier, Jr., and William Montague Geer, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Ch. J., Chase, Collin, Cuddeback, Cardozo, Seabury and Pound, JJ.  