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Baumiller v. Workingman's Co-Operative Ass'n

59 N.Y. St. Rep. 658 Court N.Y.C.P. Decision date 1894-06-04 English

Delivered by Pryór, J.

Contents

Majority

p. 658
George Baumiller, Resp’t, v. The Workingman’s Co-operative Association, etc., App’lt.
(New York Common Pleas, General Term,
Filed June 4, 1894.)

Headnote

1. Pleadings—General denial.
In an action on a policy the defense that the action was prematurely brought cannot be availed of under a general denial.
2. Same—Affirmative defense.
That the plaintiff defaulted in proof of compliance with the condition of the policy, is a defense which the defendant should allege and establish.
3. Appeal—Objection.
That no sufficient proof of plaintiff’s claim was presented to the company, is waived by the omission of a seasonable and specific objection.
Appeal from judgment of district court.
W. B. Donihee, for app’lt; Joseph Steiner, for resp’t.

In an action on a policy of insurance in the Workingman's Co-operative Association, for “ sick benefits,” the plaintiff had judgment; to reverse which the defendant urges the present appeal. He challenges the judgment upon three grounds:

First. That the action was brought prematurely, because before expiration of the thirty days allowed by the policy. The fact is not apparent; and it was an affirmative defense of which the appellant could not avail himself under his general denial.

Second. That no sufficient proof of plaintiff’s claim was presented to the association. We think otherwise; at all events the defect, if any, was waived by the omission of a seasonable and specific objection.

Thirdly. That the plaintiff defaulted in proof of compliance with the condition of the policy. But this, too, was a defense which the appellant should have alleged and established. Richmond v. Niagara F. Ins. Co., 79 N. Y. 230 ; Piedmont, etc., Ins. Co. v. Ewing, 92 U. S. 377 .

Another answer to the appeal is, that the motion to dismiss the complaint omitted to specify the particulars of non-performance of conditions. Webb v. Odell, 49 N. Y. 583 . The judgment consists with the justice of the case, and is not invalidated by any legal error.

Judgment affirmed, with costs.

All concur.

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