70 N.Y.S. 124 | N.Y. App. Div. | 1901
At the trial of this cause the complaint was dismissed and the exceptions ordered to he heard in the first instance at the Appellate-Division. The action was to recover for a loss by fire of merchandise belonging to the plaintiff, covered by a policy of insurance* issued by the defendant to it. One of the conditions of the policy is that proofs of loss should be served upon the defendant “ within, sixty days after the fire,” unless the time were extended in writing. When the cause was called for trial the defendant moved for a non-suit on the ground that the policy of insurance being annexed to the* complaint and the provision respecting the service of proofs of loss-within sixty days being contained therein, it appeared from the allegations of the complaint that such proofs of loss were not served within sixty days, it being alleged in the complaint that the fire occurred “ on or about the 18th day of February, 1898,” and that
The exact point of the defendant’s contention is, that the service of proofs of loss was a condition precedent to the right to maintain an action; that the general allegation that such proofs of loss were served within sixty days after the fire is limited and controlled by an allegation that the fire occurred on or about the 18th of Febru
The trial judge took that view of the pleading, but we cannot concur in it. A complaint stating generally that • a party, has duly performed conditions precedent contains a sufficient allegation,, which if controverted the plaintiff must establish by proof upon the trial. (Code Civ. Proc. § 533.), It is plain from the allegation that the fire occurred “ on or about ” the 18th day of February, 1898; that the plaintiff did not intend to allege a precise date. There is an averment that the proofs of loss were served within sixty days after the fire, and that allegation cannot • be totally ignored, for it is a plain statement of a fact. The form in which the allegation relating to the fire is made leaves it uncertain as to the precise day on which it occurred. But there still remains the statement of fact that the proofs of loss were served within sixty days after the fire. There are cases to be found in the courts of other jurisdictions in which it has been held that where time is of the essence of the performance of a condition precedent, the plaintiff’s pleading will be strictly construed against him. Here, the substance of the allegation of performance is that the proofs of loss were served within sixty days after the fire, and there is nothing in the use of the words “ on or about ” that could mislead a defendant or operate to its prejudice. It is immaterial on what day the fire occurred if the proofs of loss were served within sixty days after the fire, and we are not disposed to hold that a plaintiff has pleaded himself out of court when he makes a distinct allegation that he has performed a condition precedent within a required time, unless there is a positive allegation as to dates which would show that his general allegation of performance was falsified by his particular statement of dates. There is no real inconsistency in the allegations of the complaint because the plaintiff has not bound himself to particular dates. If any objection
We are, therefore, of the opinion that it was error to dismiss this ■complaint, and that the exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the event.
' Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., ■concurred.
Exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event.