Tyler v. Ætna Fire Insurance
New York Supreme Court
Motion to set aside a default. This was an action on a policy of insurance against fire. The summons was returnable on the first day of the last term. The defendants were called, their default entered, and a writ of inquiry of damages awarded, the plaintiff supposing himself entitled to such rule, under the act to prevent fraudulent bankruptcies by incorporated companies. A motion was now made to- set aside the default.
1Opinion of the Court
By the Court, Savage, C. J.
The act under which these proceedings were had, does not warrant this summary'mode of obtaining a judgment in an action on a policy of insurance, in which the demand of the plaintiff is entirely unliquidated. It can be resorted to only in cases where the suit is “upon a contract, note, or other evidence of debt,” viz. where the instrument declared on is, per se, an evidence of debt, as a note, bill of exchange, bond, &c. (6 Cowen, 41.) The proceedings are set aside as irregular, with costs.
2Cited by6 opinions
- Hankinson v. PageU.S. Circuit Court for the District of Southern New York · 1887
- N.Y.L. Ins. Co. v. . Universal L. Ins. Co.New York Court of Appeals · 1882
- Trepagnier & Bros. v. RoseAppellate Division of the Supreme Court of the State of New York · 1897
- Shorer v. Times Printing & Publishing Co.New York Court of Appeals · 1890
- Storer v. Times Print. & Pub. Co.New York Supreme Court · 1889
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