Lounsbury v. Duckrow

22 Misc. 434 | New York County Courts | 1898

Ross, J.

There is no evidence bringing the plaintiff within the rules permitting an agent to bring an action in his own name. Story on Agency, § 393.

The evidence of the plaintiff shows, or tends to show, a liability upon the part of the defendant to the insurance company, but does not, in any way, by proof of the right to subrogation or by assignment, connect the plaintiff with such right. It is claimed by the plaintiff’s attorneys that, by not specifically pleading that the plaintiff was not the real party in interest, or demurring, that such objection is waived.

I think the right of the plaintiff to ¡recover was challenged in ..every particular by the answer of a “ general denial/’ which, as is stated in one of our text-books, “ requires the plaintiff to prove every fact which is essential to his cause of action. It puts in issue every material, allegation in the complaint, and, therefore, imposes upon the plaintiff the burden of substantiating every part of his case by legal competent evidence. "And the effect of the denial is not confined merely to putting in issue all the facts which are directly alleged in the complaint, for it also puts in issue every application or conclusion of law wdiich arises out of the facts stated therein.” 2 Wait’s Law and Practice, 651.

The provisions of the Code .of Civil Procedure (§§ 498 and 499) requiring the defendant to take advantage of or specifically to plead a defect of parties or, if not so pleaded, declaring that the same is waived, assume, if such objection is not taken, a right of action, in the plaintiff in the capacity or in the form in which it is brought. They do not change the rules of pleading so as to require a specific denial as to each fact constituting plaintiff’s case, wdiich would be no more comprehensive than a general denial, much less do these provisions supply a .defect in proof.'

I also think that the case squarely presented a question of fact for the trial court as to whether the broker was the agent for the insured or the company; whether, from'the course of dealings between the broker and the plaintiff before the transaction in question and intrusting him with the policy, the "broker had not implied authority to collect the premium in this case. At least it cannot be said, as a matter of law, that he did not have such authority. Greenwich Ins. Co. v. U. D. Co., 8 N. Y. St. Repr. 353.

And the trial judge having rendered a judgment in favor of the defendant, is conclusive not. only as to every matter proved but as to every matter embraced in the pleadings. Lorillard v. Clyde, 122 N. Y. 41.

A verdict "settles in favor of the prevailing party every question of fact litigated upon the trial. Wolf v. G. Ins. Co., 43 Barb. 400.

The opinion of the learned judge is no part of the record, and ■is -only valuable as explaining the reasons of the judge for his judgment. Agan v. Hey, 30 Hun, 591; Robinson v. N. Y., L. E. & W. R. R. Co., 64 Hun. 47, 48.

Judgment affirmed, with costs.

Judgment affirmed, with costs.