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

29 N.Y.S. 26, 9 Misc. 157, 59 N.Y. St. Rep. 658

• Court: New York Court of Common Pleas
• Decided: June 4, 1894
• Status: Published

Opinion

PRYOR, J.

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 30 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.

Third. 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. Insurance Co., 79 N. Y. 230; Insurance 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 nonperformance 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.