Summary
In Feuerstein v. German Union Fire Ins. Co. (141 App. Div. 456), where an action was brought upon a fire insurance policy, the plaintiff alleged that he had complied with each and every one of the terms, conditions and agreements of the policy on his part to be kept and performed. It was held that this was not equivalent to an allegation that he "duly performed."
Summary of this case from Rosenthal v. RubinOpinion
December 16, 1910.
Arnold L. Davis, for the appellant.
I. Gainsburg, for the respondent.
Defendant appeals from a judgment entered upon a directed verdict, and from an order denying a motion for a new trial.
The action is upon a policy of fire insurance. The policy was in the usual New York standard form and was dated December 4, 1908. It is said that a fire occurred by which plaintiff suffered loss some time in April, 1909, although there was no proof of that fact on the trial. The defendant, appellant, suggests several errors in the record for which, as it claims, the judgment should be reversed. It will not be necessary to consider them all. Under this policy, as is usual, there are enumerated several conditions precedent to be performed by an insured in order to entitle him to recover upon the policy, and his performance, being essential to his cause of action, must be pleaded. Under our practice the pleader may either allege in detail the performance of each condition precedent, or may allege generally that the plaintiff has duly performed all of the conditions upon his part. (Code Civ. Proc. § 533.) In the present case the plaintiff did neither. He does allege that he complied with each and every one of the terms, conditions and agreements of the said policy on his part to be kept and performed, but this is not equivalent to an allegation that he duly performed. ( Clemens v. Amer. Fire Ins. Co., 70 App. Div. 435; Hilton Dodge Lumber Co. v. Sizer Co., 137 id. 661.) A motion to dismiss the complaint upon this ground was made at the opening of the trial and denied. It should have been granted. Not only did the plaintiff fail to effectually allege performance of the conditions precedent, but he failed to offer any proof thereof upon the trial, and especially failed to prove that he had given defendant immediate and timely notice of the loss. There was no proof offered on the trial that there had been a fire or a loss. A paper was introduced in evidence called a proof of loss which had been sent to defendant some time after the fire. It was defectively verified, and while it may have satisfied the requirements of the policy that proof of loss should be furnished, it certainly did not constitute legal evidence of loss in an action upon the policy. A paper was also allowed to be introduced purporting to be an adjustment of the loss signed by two gentlemen said to constitute some sort of a committee of fire underwriters. There was no evidence that these gentlemen had any authority to represent or bind the defendant; indeed the evidence was all to the contrary. The plaintiff, therefore, completely failed to prove any fact necessary to the recovery of a judgment, except that a policy had been issued to him by defendant.
It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and CLARKE, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.