Tyler v. Ætna Fire Insurance — 2 Wend. 280

Majority

p. 280

Tyler vs. The Ætna Fire Insurance Co. of New-York.

Headnote

In a suit against an incorporated company on a policy oFinsurance, judgment cannot he. entered on the return day oF the first process, although the deFendants neglect to appear.

Motion to set aside a default. This was an action on a policy of insurance against fire. The summons was returnable on the first day of the last term. The defendants were called, their default entered, and a writ of inquiry of damages awarded, the plaintiff supposing himself entitled to such rule, under the act to prevent fraudulent bankruptcies by incorporated companies. A motion was now made to- set aside the default.

p. 281

W. E. Welmore, for defendant

8. B. Jewett, for plaintiff.

The act under which these proceedings were had, does not warrant this summary'mode of obtaining a judgment in an action on a policy of insurance, in which the demand of the plaintiff is entirely unliquidated. It can be resorted to only in cases where the suit is “upon a contract, note, or other evidence of debt,” viz. where the instrument declared on is, per se, an evidence of debt, as a note, bill of exchange, bond, &c. (6 Cowen, 41.) The proceedings are set aside as irregular, with costs.