Eagle Waist Co. v. Ocean Accident & Guarantee Corp.

133 N.Y.S. 1031

Opinion

SEABURY, J.

Plaintiff sues to recover upon a policy of burglary insurance. The answer is in effect a general denial, and as a first defense alleges that the plaintiff failed to keep books and accounts as required by the terms and conditions of the policy, and as a second defense that the policy was avoided by the fraud of the plaintiff in exaggerating his claim by false statements. The defendant moved in the court below to compel the plaintiff to reply to the first and second defenses. This motion was denied, and from the order entered thereon the defendant appeals to this court.

The complaint alleged that the plaintiff duly performed all the covenants and conditions on his part to be performed. The first alleged defense contained in the answer is equivalent merely to a denial of the allegations which, in effect, are contained in the complaint, and we think that the discretion of the court below was properly exercised in refusing to compel a reply to this defense. Shaff v. United Surety Co., 142 App. Div. 465, 127 N. Y. Supp. 8. The second alleged defense pleaded contained new matter, which, if true, would constitute a defense to the action. The plaintiff should, therefore, have been directed to reply to this defense. Shaff v. United Surety Co., supra.

Order modified, by requiring the plaintiff to reply to the second alleged defense, .and, as modified, affirmed, with $10 costs and disbursements to the appellant. All concur.