Rodi v. President of Rutgers Fire Insurance — 19 N.Y. Super. Ct. 23

Majority

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John Rodi, Plaintiff and Appellant, v. The President, &c., of the Rutgers Fire Insurance Company, Defendants and Respondents.

Headnote

1. In an action upon a policy of insurance against loss or damage by fire, to the goods of the plaintiff, contained in certain described premises, a complaint setting out the substance of the policy and averring that the plaintiff, within the term of the insurance, 11 did sustain loss to the amount of $231.08, by reason of a fire taking place in the cellar of the said premises above mentioned,” does not state facts sufficient to constitute a cause of action.

2. In such case the complaint should state that the goods which were insured were injured or destroyed by fire; otherwise non constat, but the loss sustained by the plaintiff was by injury to the building or to other property which was not embraced within or covered by the insurance.

( Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)

Heard, December 15th, 1859;

decided, January 7th, 1860.

This is an appeal from an order, made at Special Term, before Duer, J., February 28, 1857, sustaining the defendant’s demurrer to the complaint, and ordering judgment unless the plaintiff amend, &c.

The complaint sets forth the making and delivery of a policy by the defendants, whereby they insured and agreed with the plaintiff that they “ would pay and make good to him any loss or damage which he might sustain by fire, (within one year from the date thereof,) of any of his goods and chattels, consisting of bar and household furniture,” &c., &c.; and which were contained in the first story and basement of the four story brick tenement-house 58, Avenue A, in the city of New York.

. And the complaint then averred “ that the said plaintiff did sustain loss, within the year for which he was insured, to the amount of $231.08; and, on the 3d day of November, 1854, by reason of a fire taking place in the cellar of the said premises above-mentioned.” Notice and proofs of loss were served, &c., &c.

To this complaint the defendants demurred, assigning as cause of demurrer, among other particular specifications, “ that the

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said complaint does not state facts sufficient to constitute a cause of action.”

George Carpenter, for the plaintiff (appellant).

C. A. Nichols, for the defendants (respondents).

The Code requires that a complaint shall contain a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. (Code, § 142.)

It should at least comprise a statement of all the facts which, being proved or admitted, are essential to entitle the plaintiff to recover on the case he makes. The statement should be such that upon the face thereof assuming it to be true, the law alone (without the aid of a jury) draws a necessary conclusion that a cause of action exists in favor of the plaintiff, unless the defendant can avoid such conclusion by some new facts. (Page v. Boyd, 11 How. Pr. R., 415.)

The present complaint is palpably defective in the omission to state that the goods and chattels, which were insured, were lost, injured or damaged, by the fire. It is quite immaterial to any question between the plaintiff and these defendants whether he sustained any loss or how much loss he sustained by reason of a fire taking place in the cellar, unless the goods of the plaintiff mentioned in the policy, or some of them, were destroyed or injured.

As the plaintiff does not state how he sustained loss or in what the loss consisted, non constat, but the loss which he states was by injury to the building. The subject of the insurance was the goods and chattels of the plaintiff; and it is not averred that any goods or chattels of the plaintiff were destroyed or injured; and, therefore, no loss is shown which is covered by the policy, and no cause of action against the defendants appears.

Among the precedents in Abbott’s Pleadings and Forms (p. 186) is the form of a complaint upon a fire policy, which will, I think, afford a safe guide to the pleader. The order appealed from should be affirmed.

Order affirmed, with costs.