Casualty Co. of America v. United States Casualty Co.

Headnote

Casualty Co. of America v. U. S. Casualty Co., 161 App. Div. 691 , affirmed.

Appeal from a judgment entered June 12, 1914, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was brought against the defendant to recover the amount owing by the defendant to the plaintiff under a re-insurance contract or agreement executed and-delivered by the defendant to the plaintiff, being one-half of the amount paid by the plaintiff under one of its policies, insuring one Elliott. The amended answer denied the material allegations of the complaint and set forth as a separate defense that the re-insurance contract sued upon was procured from defendant by fraud and misrepresentation on plaintiff’s part, and alleged by way of counter

claim that the re-insurance contract sued upon was issued by defendant with and on the understanding that the defendant should not be liable to the plaintiff if and in the event that the said Elliott should sustain accidental injuries whether fatal or non-fatal or suffer disease or illness while the said Elliott should be outside the limits of Canada, Europe and the United States, and that the territory of Alaska (where Elliott during its term met accidental death) should not be included as a part of the United States; that the said re-insurance contract by mutual mistake or by mistake on defendant’s part and fraud on the part of the plaintiff, failed to express the true intention of the parties hereto in this respect and demanded judgment that the said contract be reformed and corrected accordingly and that the complaint be dismissed. To this counterclaim plaintiff replied, denying its material allegations, and praying for the relief demanded in the complaint.