Sullivan v. Fraternal Societies' Co-operative Indemnity Union
New York Supreme Court
Action on two certificates issued by the defendant to the plaintiff Council by which the defendant became surety to the plaintiff Council against “ the fraud or dishonesty ” of Francis O. T.i-n^ the collector of such Council, “ amounting to embezzlement or larceny.”
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Action on two certificates issued by the defendant to the plaintiff Council by which the defendant became surety to the plaintiff Council against “ the fraud or dishonesty ” of Francis O. T.i-n^ the collector of such Council, “ amounting to embezzlement or larceny.” One certificate was issued January 1, 1899, and the other January 9, 1900; and each was to expire with the year in which it was issued; and the said collector’s term of office as such collector expired each, year at the same time, the election of collector in the said Council being for a term of one year. The said certificates are…
1Opinion of the Court
Gaynor, J.:
1 — The provision of the certificate that the defendant is to be liable provided embezzlements are committed and discovered during the year covered by the certificate and reported to the defendant within thirty days thereafter, is a condition precedent to the plaintiff’s right of action. Therefore the defendant did not have to plead its non-performance as a defence in order to raise an issue thereon. On the contrary, its performance had to be alleged in the complaint, and proved if denied in the answer; and it was so alleged and denied (McManus v. Western Assurance Co., 22 Misc.…
2Cases cited4 opinions
- Armour v. Transatlantic Fire Insurance Co. of Hamburg, GermanyNew York Court of Appeals · 1882
- Cushman v. United States Life InsuranceNew York Court of Appeals · 1875
- McManus v. Western Assurance Co.New York Supreme Court · 1898
- McManus v. Western Assurance Co. of TorontoAppellate Division of the Supreme Court of the State of New York · 1899
3Cited by3 opinions
- Knight & Jillson Co. v. CastleIndiana Supreme Court · 1909
- Poultry Producers' Union v. WilliamsWashington Supreme Court · 1910
- Hughes v. Globe Indemnity Co.Supreme Court of Minnesota · 1918