Kelly v. . Security Mutual Life Ins. Co.
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The complaint contains two counts, in the first of which the plaintiff alleged, in substance, that in August, 1889, the defendant, a domestic corporation duly authorized, issued to him its policy of insurance for $1,000, payable on his death to his wife, the policy being referred to as part of the complaint; that the plaintiff performed his part of the…
1Opinion of the CourtYawn, J.
Before any evidence was taken at the trial the defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, hut the motion was denied and the defendant excepted. This ruling survives unanimous affirmance by the Appellate Division and is open to review by this court. (Jones v. Reilly, 174 N. Y. 104; Sanders v. Saxton, 182 N. Y. 477, 478.)
The defendant was not required to present the question by demurer or answer, but could raise it by motion made at the trial. (Weeks v. O'Brien, 141 N. Y. 199, 203; Code Civ. Pro. § 499.)
The…
2Cases cited14 opinions
- Roehm v. HorstSupreme Court of the United States · 1900
- Howard v. . DalyNew York Court of Appeals · 1875
- Daniels v. NewtonMassachusetts Supreme Judicial Court · 1874
- Langan v. Supreme Council American Legion of HonorNew York Court of Appeals · 1903
- Weeks v. . O'BrienNew York Court of Appeals · 1894
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3Cited by70 opinions
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- New York Life Insurance v. ViglasSupreme Court of the United States · 1936
- Rachmani Corp. v. 9 East 96th Street Apartment Corp.Appellate Division of the Supreme Court of the State of New York · 1995
- Smyth v. United StatesSupreme Court of the United States · 1937
- Killian v. Metropolitan Life InsuranceNew York Court of Appeals · 1929
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