United States Gypsum Co. v. Insurance Co. of North America

PATTERSON, District Judge.

The action is one at law on a policyj of cargo insurance. The complaint shows that the defendant insured cargo owned by the plaintiff on barges; that on November 7, 1928, the barge Castleton while laden with cargo-belonging to the plaintiff capsized; that the cargo was lost; and that the defendant refused to make payment under the policy. In answer to the complaint the defendant pleaded a number of defenses. The defendant then made a motion under rule 113 of the New York Rules of Civil Practice *768to dismiss the cofhplaint on the ground that evidentiary facts show that…