206 A.D. 675 | N.Y. App. Div. | 1923
Order affirmed, with ten dollars costs and disbursements. Plaintiff’s theory is that the payment of the thirty-four dollars and twenty-eight cents on January 26, 1920, was a part payment of the premium due January 22, 1920. Defendant alleges the same payment, but as a consideration for extending the time when the premium was due and not as a part payment of the premium. Plaintiff’s further claim is that defendant owed the assured commissions, the crediting of which makes up the balance of the premium due. The issue is a narrow one and, as presented by plaintiff, does not, in our opinion, require further particularization. Plaintiff’s allegation of waiver is the pleading of a conclusion or the ultimate fact derived from the preceding facts and circumstances set forth in paragraph 4 of the complaint. Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur.