
    Richard L. Roberts, Inc., Appellant, v. G. R. Kinney Co., Inc., Defendant, Impleaded with General Accident Fire & Life Assurance Co., Respondent.
    First Department,
    May 7, 1937.
    
      William A. Hyman of counsel [Harold W. Hayman with him on the brief], for the appellant.
    
      Daniel Mungall of counsel [Edwin C. Markel with him on the brief], for the respondent.
   Per Curiam.

The complaint, entitled to every fair intendment, alleges not only an agreement on the part of defendant G. R. Kinney Co., Inc., to remain insured with defendant General Accident Fire & Life Assurance Co. for three years up to November, 1933, But it also sets forth an obligation on the part of the insurance company for the benefit of plaintiff to keep Kinney insured for the specified period and to refrain from canceling the insurance before the end of that term without first issuing new policies. The pleading sufficiently sets forth a cause of action against the defendant insurance company for damages for breach of the agreement to keep the insurance in effect for three years, thereby preventing plaintiff from earning brokerage commissions on the insurance.

The argument of defendant insurance company is based on the premise that the actual agreement was not as alleged. This of course is a matter of defense and may not be considered in testing the sufficiency of the complaint.

The order, so far as appealed from, should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint denied, with ten dollars costs, with leave to said defendant to answer within twenty days after service of order with notice of entry upon payment of said costs.

Present — Martin, P. J., Townley, Glennon, Untermyer and Cohn, JJ.

Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to the defendant-respondent to answer within twenty days after service of order upon payment of said costs.  