Royal Indemnity Co. v. Hill

281 A.D. 1001, 120 N.Y.S.2d 511, 1953 N.Y. App. Div. LEXIS 4050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1953
• Status: Published

Opinion

The defendant appeals from an order of the Supreme Court, Madison County, entered March 20, 1951, granting judgment on the pleadings in favor of the plaintiff, on the ground that the defendant’s answer did not comply with section 255-a of the Civil Practice Act. The complaint did not comply in form with section 255-a; there was no schedule attached to the complaint setting forth and consecutively numbering the items of the plaintiff’s claim. While the text of the complaint gave all the information which would have been contained in such a schedule, the plaintiff cannot invoke section 255-a unless he complies with it in form as well as in substance. There was no notice to the defendant that the plaintiff intended to bring the complaint under section 255-a and that the defendant was required to answer in the particular form specified in that section. So far as the substance of the pleadings is concerned, the defendant’s answer gives the substance of what would have been contained in an answer complying with section 255-a. The defendant admits the issuance to him of certain policies of insurance but he denies the remaining allegations of the complaint; this denial has the effect of putting in issue the reasonable value or agreed price (i.e., the premiums) of the policies. The order appealed from is reversed, on the law and facts, and the plaintiff’s motion for judgment on the pleadings is denied, with $10 costs. The defendant’s cross motion for a bill of particulars appears to be still pending before the Special Term. Foster, P. J., Brewster, Coon, Halpern and Imrie, JJ., concur.