Gill v. Aetna Live-Stock Insurance
New York Supreme Court
Appeal from circuit court. Action by William F. Gill against the Aetna Live-Stock Insurance Company. From a judgment in favor of plaintiff, rendered on a trial by the court, a jury having been waived, defendant appeals. The defendant, before any evidence was offered, moved that the complaint be dismissed on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied by the court, and the defendant excepted.
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Appeal from circuit court. Action by William F. Gill against the Aetna Live-Stock Insurance Company. From a judgment in favor of plaintiff, rendered on a trial by the court, a jury having been waived, defendant appeals. The defendant, before any evidence was offered, moved that the complaint be dismissed on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied by the court, and the defendant excepted. The plaintiff thereupon asked for judgment upon the pleadings, and the defendant conceded, for the purpose of the motion, that the plaintiff…
1Opinion of the CourtMayham, P. J.
The complaint in this case does not state a cause of action. The insurance policy was a contract on which an action could only be maintained after a breach. Proof of all the facts alleged in the complaint, undisputed by other evidence, would not entitle the plaintiff to recover, and this seems to be conceded by the plaintiff. There was no allegation that there was any default in the payment by the defendant, or that any sum was due on the contract. Krower v. Reynolds, 99 N. Y. 245-249, 1 N. E. 775; Keteltas v. Myers, 19 N. Y. 231-233; Tooker v. Arnoux, 76 N. *486Y. 397. These and other…
2Cases cited4 opinions
- Tooker v. . ArnouxNew York Court of Appeals · 1879
- Keteltas v. . MyersNew York Court of Appeals · 1859
- Krower v. . ReynoldsNew York Court of Appeals · 1885
- Cohu v. . HussonNew York Court of Appeals · 1889
3Cited by4 opinions
- Conklin v. McCauleyAppellate Division of the Supreme Court of the State of New York · 1899
- Page v. President, Managers & Co. of Delaware & Hudson Canal Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Raymond v. Supreme Lodge, Knights of Pythias of the WorldNew York Supreme Court · 1914
- Page v. President of Delaware & H. Canal Co.Appellate Division of the Supreme Court of the State of New York · 1902