64 N.Y.S. 290 | N.Y. App. Div. | 1900
The nature of this action is stated in the opinion of Mr. Justice Rumsey upon the first appeal (Rau v. Westchester Fire Ins. Co., 36 App. Div. 179). It was then held that the condition of the policy prohibiting the keeping or use of more than one quart of benzine upon the premises had not been violated by keeping three or five barrels of benzine in an open slied 011 the same lot as “ the brick building with frame additions attached,” in which the insured property was situated — this open shed being eight or ten feet distant from these structures, and in nowise connected therewith.
Upon the trial now under review, the defendant sought to show that the plaintiff used benzine in excess of the stipulated quantity in one of the frame additions mentioned in the policy. The plain
The position of the appellant, that the plaintiff was bound, in the first instance, to prove that he did not keep or use more than the specified quantity of benzine, is not tenable. In an action on a policy of insurance, the allegation in the complaint, under section 533 of the Code of Civil Procedure, that the plaintiff has duly performed all the conditions of the contract on his part, does not require him to prove, as a part of his affirmative case, that he has not committed any of the acts which the policy prohibits. Proof to this effect need not be offered by him until some evidence of a violation of the prohibition has been given by the defense. (Hunt v. Hudson River Fire Ins. Co., 2 Duer, 481, 489; Fischer v. Metropolitan Life Ins. Co., 37 App. Div. 575, 582: Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422; and see Blasingame v. Home Ins. Co., 75 Cal. 633.)
There is no merit in the defendant’s exception to the ruling sustaining the objection to the question, “ Did you ever have a fire before?” which was propounded to the plaintiff upon his cross-examination. The evidence which it called for had no relevancy to any litigated issue in the case.
The judgment should be affirmed.
All concurred.
Judgment and order affirmed, with costs.