13 N.Y.S. 700 | N.Y. Sup. Ct. | 1891
The objections to be found with the complaint are that it is nowhere stated therein what risks were insured against, nor whether the policy of insurance represented by the certificates was a true policy or a voyage policy. What is required in a pleading is a brief statement of facts showing a causa of action. These, though imperfectly, informally, or argumentatively averred, or though the pleading be indefinite or uncertain, do not render the pleading obnoxious to demurrer. Where, however, as here, a suit is brought to recover on a policy of insurance or certificates covered thereby, it is not sufficient to aver in a complaint that a policy was issued and a loss sustained. Insurances are of various kinds, and many different forms of policy are in use covering very different risks. Here none of the terms of the policy or of the certificates are given. Is it not clear that in orderto recover it must be proved that the policy or certificates were in force at the time of the loss, and that the agreement was to pay such loss as occurred ? Ho promise to pay any loss is alleged, nor is any description of the perils insured against given. There is a single conclusion stated in paragraph 8 of the complaint, that “there still remains a loss on so much of the cargo damaged as aforesaid, which was covered by the certificates aforesaid.” Assuming the language “which was covered” to refer to the loss, and not to the damaged cargo, and giving to “covered” the broadest signification as a concise mode of stating that the loss sustained was one against which the assured’s interest “wasprotected,” the objection still remains that, in-theabsence of any statement of facts showing the terms or conditions of the policy or certificate, this is a mere unsupported conclusion, and one which by the most forced construction only can be tortured into an allegation that the loss was one insured against. Admitting every fact distinctly alleged, or that by reasonable and fair intendment can be implied, there is still an absence of the averments essential to plaintiff’s cause of action, viz., that the policy or certificates covered the precise loss by fire and water, or that when the loss occurred the policy and certificates were still binding and in force. The conclusion reached by the trial judge justified the judgment sustaining the demurrer, and it should be affirmed, with the costs and disbursements of this appeal, but with leave, upon payment thereof, and the costs of the demurrer in the court below, to serve an amended complaint. All concur.
