183 A.D. 134 | N.Y. App. Div. | 1918
The complaint alleges, and the demurrer admits for the purposes of this appeal, that the defendant is a foreign corporation, organized and doing business under the laws of the State of Pennsylvania, and doing an insurance business within the State of New York. The complaint further alleges that on or about the 28th day of March, 1895, the defendant, for value received, made a written contract of insurance with the plaintiff, the policy being made a part of the complaint, and that “ said defendant, its officers, representatives or agents, before said plaintiff made application for said insurance, and before said contract was entered into, and with a view of inducing said plaintiff to make application and to enter into said contract of insurance, stated and represented, among other things, to said plaintiff that the payments made by said plaintiff to the mortuary and advance insurance funds would be
The plaintiff then demands judgment (1) that said defendant be required to make an accounting to the end that it may be determined whether or not the amount offered by said defendant to said plaintiff was all that was due said plaintiff under the terms of said policy; (2) that said defendant be ordered and adjudged to pay to said plaintiff the just amount that is due said plaintiff under the terms of said policy; (3) that said defendant give such other and further relief as the court may think just and equitable, besides the costs of this action.
The defendant does not answer, but demurs to the complaint on the grounds (1) that it does not state facts sufficient to constitute a cause of action, and (2) that the court has not jurisdiction of the subject of the action.
The learned court before whom the demurrer came on for argument overruled the demurrer, writing an opinion in which he properly reaches the conclusion that the plaintiff framed his complaint upon the theory that the action was “ one purely in equity,” but erroneously holds that the complaint states an action at law, and entirely ignores the defendant’s contention that the court was without jurisdiction of the
While legislators and publicists are vexing their minds with problems of simplified pleadings as a remedy for the alleged delays of the law, it may not be out of place to suggest that a fair trial of the Code of Civil Procedure, in which bench and bar should join, might obviate many of the difficulties supposed to exist. What can be simpler than the requirements of section
After providing that the complaint shall have a plain and concise statement of facts, with a demand for the judgment to which the plaintiff supposes himself entitled, the Code of Civil Procedure (§ 1207) requires that “ Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint.” That is, where there is no answer, but a demurrer, the plaintiff is not entitled, upon an overruling of the demurrer, to any other or more favorable judgment than he has demanded, and where the court finds that under an equitable complaint, and an equitable demand for relief, the plaintiff has failed to state facts which call upon a court of equity to act, there is no foundation for a judgment at law; no such cause of action has been stated; no such demand for relief has been made. (Edson v. Girvan, 29 Hun, 422; Swart v. Boughton, 35 id. 281; Corrigan v. Coney Island Jockey Club, 51 N. Y. St. Repr. 592; Low v. Swartwout, 171 App. Div. 725; Tucker v. Weeks, 177 id. 158, 160; Consolidated Rubber Tire Co. v. Firestone Tire & R. Co., 135 id. 805; affd., without opinion, passing on the question of whether facts sufficient to constitute a cause of action specially submitted, 199 N. Y. 536.)
In the Consolidated Rubber Tire Company Case (supra)
We are of the opinion, likewise, that the court was not justified in ignoring the defendant’s contention that the court was without jurisdiction of the subject of the action, though if there had been a pure action at law it is probable that the objection was not good. If the action was one in equity, and this is clearly what the plaintiff attempted, the recent case of Sauerbrunn v. Hartford Life Ins. Co. (220 N. Y. 363) would seem to be conclusive that a foreign insurance company cannot
The interlocutory judgment appealed from should be reversed and the defendant’s demurrer should be sustained, with costs in all courts.
All-concurred.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with usual leave to plaintiff to plead over within twenty days on payment of such costs.