Krickl v. Ocean Accident & Guarantee Corp.

143 N.Y.S. 750 | N.Y. App. Term. | 1913

Seabuey, J.

This is an appeal from an order denying defendant’s motion for judgment on the pleadings. The action was brought to recover upon a policy insuring plaintiff against loss by burglary, larceny or theft of certain articles mentioned in said policy, a copy of which is annexed to the complaint. The complaint alleges that while said contract of insurance was in force and effect “ certain property belonging to plaintiff’s wife ” was stolen. The court below denied the motion on the ground that the plaintiff was entitled under the policy to bring the action in his own name, even though the property belonged to his wife. The terms of the policy justified this ruling. The vice of the complaint lies in its failure to allege that the property stolen was the property covered by the policy of insurance. Such an allegation was essential to the statement of a cause of action. Rodi v. Rutger’s Fire Ins. Co., 19 N. Y. Super. Ct. 23; Krank v. Continental Insurance Co., 50 Misc. Rep. 144.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within six days after service óf a copy of the order entered herewith, with notice of entry in the City Court upon payment of costs in this court and the court below.

Guy and Bijur, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to serve amended complaint.