60 N.Y.S. 609 | N.Y. App. Div. | 1899
The action was brought upon what is known as a Lloyds policy of insurance for $2,500. The policy was annexed to the complaint and made a part of it. It was substantially an agreement by the defendants, who were subscribers to it, by which they agreed to insure the separate amounts placed after their names, respectively, and separately, in the same amounts insured the plaintiff’s assignor for the term of one year from the 16th of October, 1894, to the 16th of October, 1895, against loss or damage by fire, to an amount not exceeding $2,500. The complaint contained the other necessary allegations to warrant a recovery. All the subscribers to the policy were joined as defendants in this action. They jointly answered, setting up various defenses.
Upon the trial of the action a motion to dismiss the complaint upon the opening was made upon the ground that there was a condition in the policy providing that all the underwriters could be sued separately in separate actions, whereas in this action the plaintiff had joined all the defendants. The motion was granted and the plaintiff’s counsel excepted, and from the judgment entered upon the dismissal of the complaint this appeal is taken.
We are quite clear that the dismissal of the complaint upon the ground stated was erroneous. The defendants’ objection to the complaint was that there was a misjoinder of causes of action. This objection appeared on the face of the complaint, but no notice was taken of it by demurrer, as it might have been, nor did the defendants object to the misjoinder by their answer. The Code provides that if that objection is not taken either by demurrer or answer the defendant is deemed to have waived it. (Code Civ. Proc. § 499.) Within that rule it was the duty of the court to have
The judgment, therefore, must be reversed and a new trial ordered, 'with costs to the appellant to abide the event of the action,
Van Bbunt, P. J., Babbett, Ingeaham and McLaughlin, JJ., ooncurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.