211 A.D. 93 | N.Y. App. Div. | 1924
The action is brought to recover from the defendant a portion of taxes paid by the plaintiff, upon the allegation that plaintiff and defendant, as well as other insurance companies, were under the management of O. G. Orr & Co., Inc., “ which acted as agent and/or manager of each of said companies for the purpose of transacting a marine insurance business.”
The complaint then further alleges: “ That in the course of said business, risks were accepted by the said O. G. Orr & Co., Inc., in the name of individual companies and agreed portions thereof were ceded to the other companies, specifically or on a certain fixed percentage basis, each receiving its proportion of premiums and paying its agreed proportion of any losses and of the expenses incident to the transaction of the said business.
“ That the practice of the management was then and had always been to apportion the expenses incident to the transaction of said business annually on the basis of the percentage that the net premiums received by each company under said management bore to the entire premiums received by all the companies under said management.”
It is then alleged that in the course of the business plaintiff was compelled to pay out certain State taxes on the business transacted in its name, which constituted a part of the expenses incidental to said business, portions of which were refunded to plaintiff by the various other companies under the single management, with the exception of the defendant; that plaintiff was compelled to and did advance for the account of the defendant the sum of $9,020.67, representing the share of State taxes chargeable to the defendant, as aforesaid, for which judgment is demanded.
The plaintiff asks us to draw from the facts alleged the implication that the payment was made for the use and benefit of the defendant. No facts giving rise to such an implication are present. The statement that “ the plaintiff was compelled to and did advance
The rule applicable to the pleading of a custom relied on is stated in 17 Corpus Juris (p. 518), as follows: “ Where it becomes necessary to plead a custom or usage, all the essentials requisite to its validity and binding effect must be averred. Hence the pleading should either aver knowledge on the part of the person to be charged or allege facts authorizing the conclusion that it was of such general notoriety that he will be presumed to have knowledge.”
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days after service of a copy of this order upon payment of said costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.