Opinion
March 11, 1931.
Appeal from Supreme Court of Erie County.
Saperston, McNaughtan Saperston [ Daniel N. McNaughtan of counsel], for the appellant.
Frederic W. Frost [ Harold S. Brown of counsel], for the respondent.
Present — SEARS, P.J., CROUCH, TAYLOR, THOMPSON AND CROSBY, JJ.
We think the complaint was insufficient in respect to the following matters: (1) In failing to allege facts showing the expiration of sixty days after receipt by the defendant of the final statement of claim, as provided in paragraph 7 of the conditions and stipulations of the policy. ( Clemens v. American Fire Ins. Co., 70 App. Div. 435, 437.) This was a condition precedent, but not one of those covered by rule 92 of the Rules of Civil Practice; (2) in failing to negative the exceptions to the coverage of the policy as set forth (a) on the face of the policy, and (b) in the second rider attached to the policy. ( Lilly v. Preferred Accident Ins. Co., 41 Misc. 8; Tolmie v. Fidelity Casualty Co., 95 App. Div. 352, 356; Clark Code Pleading, pp. 193, 194.) It is reasonably clear that those provisions were true exceptions as distinguished from warranties or conditions. They appear to have been inserted in the contract for the purpose of withdrawing from the general coverage of the policy certain risks which the defendant declared itself unwilling to undertake. It is necessary for plaintiff to allege and prove that the loss was not the result of one of the excluded risks and hence that it was included within the risks described by the general language. Otherwise there would be a failure to show the existence of any legal relations under the contract. The remaining objections to the pleading, except the one which was waived on the argument, are overruled, though the pleader might very well make his allegations more definite and exact.
The order should be reversed, with ten dollars costs and disbursements, and the motion, under rule 106 of the Rules of Civil Practice, granted, with ten dollars costs, with leave to plead over within twenty days upon payment of costs.
All concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to plead over within twenty days upon payment of the costs of the motion and of this appeal.