Herman Feuerstein, Respondent, v. The German Union Fire Insurance Company of Baltimore, Appellant

Herman Feuerstein, Respondent, v. The German Union Fire Insurance Company of Baltimore, Appellant. First Department, December 16, 1910. Pleading—performance of condition precedent — action on fire insurance policy — proof not justifying recovery. In pleading the performance of a condition precedent to a recovery on a contract the plaintiff may allege in detail the performance of each condition precedent, or may allege generally that he has “ duly” performed all the conditions upon his part. An allegation by a plaintiff suing upon a policy of Are insurance that he com- ■ plied with each and every one of the terms', conditions and agreements of said policy on his part to be kept, and performed-is not equivalent to an allegation that he'“ duly” performed. A judgment for the plaintiff in an action on such policy will be reversed where he not only failed to allege and prove the performance of conditions precedent, but also failed to prove that he had given immediate and timely notice of loss and the case is barren of proof that there had been any fire or loss. Appeal by the defendant, The ' German Union Fire' Insurance Company of Baltimore, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of New York on the 28tli day of May, 1910, upon the. verdict of- a jury rendered by direction of tlie court, and also from an order entered in said clerk’s office on the 27th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes. Arnold L. Davis, for the appellant. I. Gainsburg, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Defendant appeals from a judgment entered upon a directed verdict, and from an order denying a motion for a new trial. The action is upon a policy of tire insurance. The policy was ■ in the usual New York standard form and was dated December 4, 1908. It is said that a fire occurred by which plaintiff suffered loss some time in April, 1909, although there was no proof of that fact on the trial. The defendant, appellant, suggests several errors in the record for which, as it claims, the judgment should be reversed. It will npt be necessary to consider them all. Under this policy, as is usual, there are enumerated several conditions precedent to be performed by an insured in order to entitle him to recover upon the policy, and his performance, being essential to his cause of action, must be pleaded. Under our practice the pleader may either allege in detail the performance of each condition precedent, or may allege generally that the plaintiff has duly performed all of the conditions upon his part. (Code Civ. Proc. § 533.) In the present case the plaintiff did neither. He does allege that he complied with each and every one of the terms, conditions and agreements of the said policy on liis part to be kept and performed, but this is not equivalent to an allegation that he duly performed. (Clemens v. Amer. Fire Ins. Co., 70 App. Div. 435; Hilton & Dodge Lumber Co. v. Sizer & Co., 137 id. 661.) A motion to dismiss the complaint upon this ground was made at the opening of the trial and denied. It should have been granted. Not only did the plaintiff fail to effectually allege performance of the conditions precedent, but he failed to offer any proof thereof upon the trial, and especially failed to prove that he had given defendant immediate and timely notice of the loss. There was no proof offered on the trial that there had been a fire or a loss. A paper was introduced in evidence called a proof of loss which had been sent to defendant some time after the fire. It was defectively verified, and while it may have satisfied the requirements of the policy that proof of loss should be furnished, it certainly did not constitute legal evidence of loss in an action upon the policy. A paper was also allowed to be introduced purporting to be an adjustment of the loss signed by two gentlemen said to constitute some sort of -a committee of fire underwriters. There was no evidence that these gentlemen had any authority to represent or bind the defendant; indeed the evidence was all to the contrary. The plaintiff, therefore, completely failed to prove any fact necessary to the recovery óf a judgment, except that a policy had been issued'to him by defendant. It follows that the judgment and'order appealed from must be reversed and a new trial granted, with cost's to appellant to abide the event. Ingraham, P. J., McLaughlin, Laughlin and Clarice, J., concurred. Judgment and order reversed; new trial ordered, costs to appellant to'abide event.