Lamoreux v. Atlantic Mutual Insurance — 10 N.Y. Super. Ct. 680

Majority

p. 680

Lamoreux v. The Atlantic Mutual Insurance Company.

Headnote

A complaint in an action to recover the amount insured by a policy of insurance, which (among other things) “prays that, if the same be necessary, said policy may be reformed in such manner as fully and clearly to express the intention and agreement of the parties,” a plaintiff will be compelled to amend, either by striking out such hypothetical prayer, or so as to directly ask that the policy may be reformed, and to state what the reformation should be.

If relief of the latter kind is not sought, the complaint should not contain any

p. 681

allegations which are utterly irrelevant to every other point. If it is sought, facts should he stated, which, if proved or admitted, would entitle a plaintiff to such relief

At Chambers,

Sept. 22, 1854.

This is an action on a policy of insurance, issued by the defendant, to recover $7,000, the sum insured, with interest. The complaint stated, among other things, that the policy executed was the usual printed form, used in certain cases; that it did not precisely state the actual agreement of the parties; that certain words, in order to definitely express that agreement, which ought to have been, were not written on the margin of the policy, but omits to state what they are. 3STor does it state what change should be made in the language of the policy in order to express the agreement of the parties to it.

The complaint, among other things, “ prays that, if the same be necessary, said policy may be reformed, in such manner as fully and clearly to express the intention and agreement of the parties,” and concludes by demanding judgment for the sum of $7,000, the amount insured, with interest.

The defendant now moves for an order to compel the plaintiff to so amend the complaint, that it shall unconditionally pray for a reformation of the policy, or wholly omit to ask any such relief.

D. Lord, for defendant.

Geo. F. Betts, for plaintiff.

The Code requires a complaint to contain “ a demand of the relief to which the plaintiff supposes himself entitled.” (§ 142, sub. 3.) The nature of the relief demanded, in many cases, determines the mode of trial. If the prayer is for a judgment, that the plaintiff recover of the defendant a sum of money, the action must be tried by a jury. (§ 253.) If other relief be prayed, the cause is to be tried by the court, unless the court orders otherwise. (§ 254.)

If in an action on contract the prayer is simply for a judgment for a sum named, or in the language of the Code, if the

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action is “ for the recovery of money,” the clerk, in case no answer is put in, must assess the damages. (§ 246, sub. 1.)

If it is not merely for the recovery of money, but other relief is prayed, and must be given, to enable a plaintiff to recover, judgment cannot be given without an application to the court. (Id. sub. 2.)

• The summons, in the one case, must be. different from that in the other. (§ 128.)

If the action is for the recovery of money only, if the plaintiff recovers $50 (if it be on contract), he recovers costs. (§ 304, sub. 4.)

But if he seeks other relief, and the action be such as formerly could be brought only in chancery, the costs are in the discretion of the court. (§ 306.)

Hot only the imperative' requirements of the Code, but the policy, and all the provisions of it, before referred to, demand that the specific relief sought should be stated distinctly and directly.

If the question of reforming the policy is to be litigated, a defendant should be advised of it by the complaint. Unless facts are stated sufficient to entitle a plaintiff to that relief, a defendant may desire to demur to so much of the complaint as contains that cause of action. (§ 145.)

Unless the reforming of the policy is sought, and a judgment reforming it is demanded, all allegations in the complaint, having no relation to any other point, should be omitted.

This complaint does not state what words were Omitted to be written on the margin of the policy, nor what precise reformation is sought. The plaintiff may amend his complaint within twenty days as he may be advised. If he does not amend, the words, “ that if the same be necessary,” will be stricken out of the complaint, and defendant may have ten days to answer a demurrer, after the complaint has been amended.

(Duer and Hoffman, J.J., being consulted, concurred.)