Memorandum by the Court. Order entered on August 4, 1961, which denied defendant-appellant’s motion to dismiss the complaint as against it for failure to state a cause of action, reversed, on the law, with $20 costs and disbursements to the appellant, and complaint dismissed as to defendant-appellant without prejudice. The complaint may be summarized as follows. Plaintiff issued a policy of insurance to defendant Richards Freight Lines, Inc. (Richards) covering trailers owned by Richards against risk of collision. One of the trailers collided with a vehicle owned by Witkowski, who was insured against liability for property damage by defendant-appellant and who is not a party to the action. Pursuant to plaintiff’s policy it paid $4,433.25 to Richards and defendant Gindy Manufacturing Company (Gindy), which had an interest in the damaged trailer as mortgagee or conditional vendor. Thereafter Richards and Gindy presented a claim to defendant-appellant. The latter, though “duly apprised of the interest of the plaintiff ”, settled the claim by paying $3,270.52 to Richards and Gindy. That sum plaintiff seeks to recover from defendant-appellant. Under the allegations of this complaint, whatever rights plaintiff acquired against Witkowski by subrogation are the maximum measure of its rights against his insurer. Had Witkowski, with, knowledge of plaintiff’s rights, paid Richards and Gindy for a release, he would still remain answerable to plaintiff in an appropriate negligence action. The complaint contains no allegation of negligence. If in some manner the *753settlement frustrated or would frustrate plaintiff’s prosecution of such an action, that, too, is not alleged.