Danerhirsch v. Great Eastern Casualty Co.

Appellate Terms of the Supreme Court of New York

Danerhirsch v. Great Eastern Casualty Co.

160 N.Y.S. 1015

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 17, 1916

StatusPublished

This text of 160 N.Y.S. 1015 (Danerhirsch v. Great Eastern Casualty Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Danerhirsch v. Great Eastern Casualty Co., 160 N.Y.S. 1015 (N.Y. Ct. App. 1916).

Pincite

Opinion

SHEARN, J.

[1,2] This action is brought to recover under a policy insuring against loss from burglary in plaintiff’s premises “provided there shall be visible marks upon the premises of force and violence in forcing entry or exit.” The complaint alleges that the premises were broken into and “burglarized,” but fails to allege that there were any visible marks upon the premises of force and violence in forcing entry or exit, without proof of which there can be no recovery. Rosenthal v. American Bonding Co., 207 N. Y. 162, 107 N. E. 716, 46 L. R. A. (N. S.) 561. Therefore the complaint, to which the contract of insurance is annexed, fails to disclose a cause of action. Facts which are absolutely essential to a recovery must be pleaded. They are not included in the classification of “evidentiary facts” merely because they have to be proved. “Evidentiary facts,” the pleading of which is dispensed with, are not those essential to the existence of a cause of action. It might as well be claimed that the allegation of a loss is evidentiary.

The order is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to amend the complaint within six days on payment of costs. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

SHEARN, J.

[1,2] This action is brought to recover under a policy insuring against loss from burglary in plaintiff’s premises “provided there shall be visible marks upon the premises of force and violence in forcing entry or exit.” The complaint alleges that the premises were broken into and “burglarized,” but fails to allege that there were any visible marks upon the premises of force and violence in forcing entry or exit, without proof of which there can be no recovery. Rosenthal v. American Bonding Co., 207 N. Y. 162, 107 N. E. 716, 46 L. R. A. (N. S.) 561. Therefore the complaint, to which the contract of insurance is annexed, fails to disclose a cause of action. Facts which are absolutely essential to a recovery must be pleaded. They are not included in the classification of “evidentiary facts” merely because they have to be proved. “Evidentiary facts,” the pleading of which is dispensed with, are not those essential to the existence of a cause of action. It might as well be claimed that the allegation of a loss is evidentiary.

The order is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to amend the complaint within six days on payment of costs. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

160 N.Y.S. 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danerhirsch-v-great-eastern-casualty-co-nyappterm-1916.

Opinion

Related

Cite This Page — Counsel Stack