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Ithaca Fire Department v. Rice

108 A.D. 100 Court N.Y. App. Div. English

Delivered by Chase, J.:

Contents

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p. 100
Ithaca Fire Department, Appellant, v. John F. Rice, Respondent.

Headnote

Penalty Under section 135' of the Insurance Law — it does not relate to an gat done outside of the Stale of New York—pleadings inan action for,, are strictly construed.
A .person-seeking to maintain an action for a statutory penalty must state every fact required to enable the court to judge whether he has a cause of action under the statute; in such an-action the pleadings are strictly construed.
The complaint in an action brought to recover a penalty of $200 under section 135 of the Insurance Law (Laws of 1892, chap. 690) alleged ‘‘ That on the 11th day of April, 1903, the defendant, as agent for the Prussian National Insurance Company (of ’Stettin, Germany), which- is a company not organized under the laws of the State of New York, -effected an insurance of the property of Cornell University, situated within the said city of Ithaca, against loss or injury by fire, in the said Prussian National Insurance Company, without having filed . with the. treasurer of the plaintiff (the Ithaca Fire Department) a bond required ■ by section 134 of the Insurance Law of this State, and that no bond has ,at the time aforesaid been filed with the Superintendent of Insurance by the said Prussian National Insurance Company as was permitted by said Section 134 -of the Insurance Law.” . , .
Held, that the complaint was demurrable, as non constat but that the defendant may'have been a resident agent of the Prussian National Insurance Company at Stettin, Germany, and that Cornell University may have there applied for .and obtained the-insurance, in which case the action -for the penalty could not be maintained, as the statutes and authority of the Legislature are not extraterritorial but are confined to the limits and boundaries of the State,
Appeal by the plaintiff, the Ithaca Fire Department, from a final judgment of. the Supreme Court in favor of the defendant, entered in the office of the clerk of the- county of Tompkins on the 1st. day of March, 1905, pursuant to. an .interlocutory' judgment entered in said clerk’s office on. the 2d day of February, 1905, upon the decision of the court, rendered after a trial at-the Tompkins Special Term, sustaining the- defendant’s demurrer to the plaintiff’s complaint, with notice of an intention to bring up for review upon such appeal the said interlocutory judgment.
Bradford Almy, for the appellant.
William B. Murray, for the respondent.

The plaintiff is a corporation and the fire department of the city of Ithaca. The complaint alleges: “ That on the 11th day of April, 1903, the defendant, as agent for the Prussian National Insurance

p. 101
Company (of Stettin, Germany), which is a company not organized under the laws of the State of New York, effected an insurance of the property of Cornell University, situated within the said city of Ithaca, against loss or injury by fire, in the said Prussian National Insurance Company, without having filed with the treasurer of the plaintiff a bond required - by section 134 of the Insurance Law of this State, and that no bond has at the time aforesaid been filed with the Superintendent of Insurance by the said Prussian National Insurance Company as was permitted by said Section .134 of the Insurance Law.” It further alleges that by reason of said facts the defendant is liable for a penalty of $200 under section 135 of the Insurance Law (Laws of 1892, chap. 690).

The defendant demurred to the complaint on the ground that it did not state facts sufficient-to constitute a cause of action.

A person seeking to maintain an action under a statute must state every fact required to enable the court to judge whether he has a cause of action under the statute. (Rosenstock v. City of New York, 97 App. Div. 337 .)

In an action to recover a penalty the pleadings are construed strictly. (People v. Spees, 18 App. Div. 617 , 621; County of Steuben v. Wood, 24 id. 442.) It does not appear from the complaint where the contract of insurance was made. So far as appears the defendant may be a resident agent of the Prussian National' Insurance Company at Stettin, Germany, and the Cornell University may have there applied to him and obtained the insurance at the home office of the company. In such case this action could not be maintained. ( Western Mass. Fire Ins. Co. v. Hilton, 42 App. Div. 52 ; Boston Manufacturer's Mutual Fire Ins. Co. v. Hendricks, 41 Misc. Rep. 479 .)

The statutes and authority of the Legislature are not extraterritorial, but are confined to the limits and boundaries of the State. (City of New YorK v. McLean, 170 N. Y. 374 .)

The facts stated in the complaint are not sufficient to enable the court to judge whether the plaintiff has a cause of action under the statute, and the judgment should, therefore, be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

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