83 N.Y.S. 728 | N.Y. App. Div. | 1903
The defendant issued an insurance policy to the plaintiff for an amount not exceeding $2,000. One thousand dollars of this policy was written upon the household furniture and $1,000 on certain wines, liquors, etc., used upon the premises. The complaint alleges -ownership in the plaintiff, issuance of the policy, the payment of
Upon the trial the plaintiff introduced evidence in support of the allegations of her complaint which-had beeh controverted, and the defendant placed witnesses on the stand to testify that some portions of the goods, alleged to have been in the building at the time of the fire, had been removed. This evidence, eompétent for the purpose of arriving at the amount of the .plaintiff’s loss) -was sought to be made use of by.the defendant as evidence of fraiud and false, swearing, which, under the terms of the policy, would vitiate the instrument. The learned trial justice refused to permit this use of the evidence, and charged the jury that there was no issue of fraud or false swearing tendered by the pleadings, and that there was no such question before them. This charge to the jury, with various intermediate rulings upon the samé point, constitutes the only question presented upon this appeal, the jury having found a verdict for .the plaintiff for $1,566 instead of the full face of the policy.
We are of opinion that the case does not. present reversible error. The defendant might disprove, under a general denial, anything which it was necessary for the plaintiff to establish, but it has never, been held, so far as we discover, that it was incumbent upon a plaintiff in an action of this character to prove, what the law presumes, that he has not been guilty of fraud. The'-general rule of pleading, which is in accord with reason,.is that defenses -which assume or admit the original cause of action! alleged, but are based; upon subsequent facts or transactions which ¡go to qualify or defeat it, must be pleaded and proved by the defendant. (Farmers' Loan & Trust Company v. Siefke, 144 N. Y. 354, 360.) The plaintiff
•' The judgment and order appealed from should be affirmed, with costs.
' Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.
Judgment and order affirmed) with costs.