Vanta v. Massachusetts Bonding & Insurance — 158 A.D. 502

Majority

p. 502

Harry Vanta and Louis Vanta, Respondents, v. Massachusetts Bonding and Insurance Company, Appellant.

First Department,

October 24, 1913.

Headnote

Pleading — reply — action on insurance policy —breach of warranty — bill of particulars.

A plaintiff suing on a policy of burglary insurance should be directed by the court to reply to a defense setting up a breach of warranty as to previous applications and the cancellation of previous policies issued to him, and also to a defense alleging a breach of warranty with respect to the required burglar alarm system and maintenance thereof.

The defendant should not be required to furnish a bill of particulars respecting the facts set up in the defenses.

Appeal by the defendant, Massachusetts Bonding and Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleik of the county of New York on the 9th day of September, 1913, denying defendant’s motion to require plaintiffs to reply to the second separate defense set up in the answer, • and also requiring the defendant to furnish plaintiffs with a bill of particulars before the plaintiffs will be required to reply to the first separate defense set up in the answer.

Joseph L. Prager, for the appellant.

Philip J. Dunn, for the respondents.

This action is to recover $2,000 for alleged loss by burglary under a policy of insurance issued by the defendant to the plaintiffs. The first defense sets up a breach of warranty with respect to a previous application and declination of insurance, and previous cancellation of a burglary insurance policy issued to the plaintiffs prior to the issuance of the policy alleged in the complaint. The second defense alleges a breach of warranty with respect to a required burglar alarm system and maintenance thereof.

The learned court should have granted the motion and directed the plaintiffs to reply to each of these defenses. The

p. 503

defendant should not have been required to furnish a bill of particulars respecting the facts set up in the first defense.

The order appealed from should, therefore, be reversed with ten dollars costs and disbursements, and the motion requiring a reply to each of the defenses granted.

Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.