McLain v. British & Foreign Marine Ins.

Headnote

Marine Insurance—Action on Policy—Pleading.

Where the complaint in an action on a marine insurance policy alleges “that plaintiff has duly performed all the conditions of said policy of insurance on his part,” it sufficiently alleges that the insured boat was in, a seaworthy condition, within the requirements of the policy.

Appeal from trial term.

Action by Bernard McLain against the British & Foreign Marine Insurance Company, Limited, on a policy of marine insurance. From a judgment entered on a verdict in favor of plaintiff for the full amount of the policy, defendant appeals. Affirmed.

The complaint is as follows:

The plaintiff complains of the above-named defendant, by Hyland & Zabriskie, his attorneys, and respectfully shows to this honorable court as follows: First, that at the times hereinafter mentioned the plaintiff was, and is now, an actual inhabitant and resident of the state of New York; second, that at the times hereinafter mentioned, as plaintiff is informed and believes, the defendant was, and is now, a foreign corporation, duly created, organized, and existing under and by virtue of the laws of Great Britain, and had then, and has now, an office for the regular transaction of business in the city of New York; third, that at the times hereinafter mentioned the plaintiff was the sole owner of the canal boat Agnes K., her tackle, apparel, and furniture, to an amount exceeding the whole amount insured, as hereinafter stated; fourth, that on or about the 1st day of October, 1892, at the city of New York, N. Y., in consideration of the premium of $50, which the plaintiff then and there paid to the defendant, or then and there agreed and became liable to pay to the defendant, the said defendant, by its agent, duly authorized thereto, made its certain policy of insurance in writing, numbered 0478, upon the canal boat Agnes K., her tackle, apparel, and other furniture, then lying in the port of New York, against the perils of the sea, and other perils in said policy of insurance mentioned, whereby it insured the plaintiff, Bernard McLain, for account of himself, to the amount of $1,000, from noon on the 6th day of October, 1892, to noon on the 6th day of October, 1893; fifth, that on or about the 16th day of September, 1893, the said canal boat, while in the prosecution of a voyage from Guttenberg, N. J., bound for Seventy-Ninth street, East river, New York City, having on board a cargo of 2201°/ioo tons of coal, which she had taken on at Guttenberg aforesaid, and while in tow of the steam tug Nettie L. Tice, sprung a leak, by the perils of the sea, about 8:30 p. m. on the day aforesaid, while off the West Shore ferry, and sunk with the cargo of coal in her, and became thereby and now is, a total loss, and that the said canal boat, her tackle, apparel, and furniture, were reasonably worth more than the sum of $1,000 at the time of the taking out of said policy of insurance, and also at the time of her loss by the perils of the sea, as aforesaid; sixth, that plaintiff has duly fulfilled all the conditions of said policy of insurance on his part, and more than 60 days before the commencement of this action gave to the defendant due notice and proof of such loss or damage,' and of the amount thereof, and proof of the interest of the insured, and duly demanded from the defendant payment of the said sum of $1,000, less the sum of $125, being the amount of the particular average provided for in and by the said policy of insurance; seventh, that no part of the same has been paid, and that there is now due and owing from the defendant to plaintiff the sum of $875, with interest thereon from January 1, 1894: Wherefore, plaintiff demands judgment against said defendant for the sum of $875, with interest thereon from the 1st day of January, 1894, besides the costs and disbursements of this action.