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2745 MATTER OF TRUSLOW. Judicial settlementWhen not delayed at the instance of an alleged creditor.... .37 Misc. 189
2745 MATTER OF HENSHAW. Distribution in Surrogate's Court-The holder of a contingent debt against a decedent's is not a creditor thereof― Covenant not running with the land,
37 Misc. 536
2759 PARKER v. BEER. Will-Discretionary power of sale of real estate. ...
173 N. Y. 332
38 Misc. 622
2759 MATTER OF ROWLEY. Testamentary power of
2793 MATTER OF SUMMERS. Sale of decedent's real subd. 6 estate to pay debts-Fund applicable to what debts....
.37 Misc. 575
2805 MATTER OF FOSTER. Testamentary trusteePetition for payment of income-Trust income not assignable-Answer under Code of Civil Procedure, 2805....
..37 Misc. 581
2878 JONES v. WALLACE. Time, how computedService of a summons in a Justice's Court,
75 App. Div. 401
2886 MCLEAR v. REYNOLDS. An attorney in fact in a Justice's Court and an attorney at law in courts of record, distinguished Service of an offer of judgment after an appeal from a judgment of a justice of the peace-Upon what attorney it may be made........76 App. Div. 267 Supplementary
3017 JOHNSON v. MANNING (No. 1).
proceedings on a judgment recovered in a
.75 App. Div. 285
3063 JACKSON v. HELMER. A justice's judgment sustained on a theory different from that on which
the case was tried...
73 App. Div. 134
3063 HARTMANN v. Hoffman. Appeal from a justice's judgment to a County Court-Right of reversal by the County Court on the ground that the judgment was against the evidence-Effect of a reversal by the Appellate Division of a judgment of affirmance by the County Court.... ..76 App. Div. 449 3063 STROMBERG v. DI SALOO. Municipal Court of the City of New York-Exception to the rule that one justice cannot review another's de...38 Misc. 139
3070 MCLEAR v. REYNOLDS. An attorney in fact in a justice's court and an attorney at law in courts of record, distinguished-Service of an offer of judgment after an appeal from a judgment of a justice of the peace-Upon what attorney it may be made.......76 App. Div. 267 3220 JOHNSON v. MANNING (No. 1). Supplementary proceedings on a judgment recovered in a Municipal Court, a transcript of which was docketed in the County Clerk's office-The Supreme Court may set them aside, but cannot vacate the judgment... .75 App. Div. 285 3247 DROEGE v. BAXTER. Costs-Liability therefor, of a judgment creditor who secures the appointment of a receiver of his debtor's property and requests the receiver to bring an action to recover it, in which a judgment for costs is recovered against him,
77 App. Div. 78 3253 WEEKS v. COE. Additional allowance in an action against executors on a claim against their decedent's estate-Certificate of a referee that the case was difficult-Presumption on appeal that the claim was unreasonably resisted... .76 App. Div. 310
3253 SMITH V. LEHIGH VALLEY R.R. Co. (No. 2).
Additional allowance of costs-An action to
77 App. Div. 47
3268 SCHRIER v. HOGAN. Security for costs-This section does not apply to an action by a trustee in bankruptcy to set aside transfers by the bankrupt..... 70 App. Div. 3268 JOSEPH v. MAKLEY. Trustee in bankruptcysubd. 4 Security for costs may be required of him in an action on a claim existing prior to his ap.73 App. Div. 156 3268, JOSEPH v. RAFF. Costs-Security for, when 3271 required of a trustee in bankruptcy as a matter of right-When in the discretion of the Court ..75 App. Div. 447 3268, KRONFELD 2. LIEBMAN. Security for costs3271 When a defendant sued by a trustee in bankruptcy may compel it as a matter of rightWhen it rests in the discretion of the CourtA motion to vacate an order improperly made should not be treated as an original application for the order. . . . . ..78 App. Div. 437 3271 KELLY v. KELLY. Security for costs-Cannot be required of the committee of an incompetent in an action against him....77 App. Div. 519 3333 PEOPLE . ELLIOTT. Crimes-Reading on second trial of testimony of deceased witness taken on first trial.... ..172 N. Y. 146 MATTER OF CHESTERMAN. Agreement between trustees of a surety upon their bond as to the withdrawal of deposits from bank-The Court may order the withdrawal without the surety's consent-The Surrogate's Court may do so, 75 App. Div. 573
3374 COUNTY OF ONONDAGA v. WHITE. Condemnation-Terms of discontinuance as effected by
.38 Misc. 587
CIVIL PROCEDURE REPORTS.
AMERICAN FIRE INSURANCE
COMPANY OF PHILADELPHIA.
SUPREME COURT-APPELLATE DIVISION-FOURTH DEPARTMENT-MARCH, 1902.
Fire Policy Conditions Precedent-Proofs of Loss-Insufficiency of Complaint.
In an action on a fire policy, an allegation in the complaint that plaintiff filed a complete inventory of the property destroyed and injured, with the quantity and cost of each article and amount claimed thereon, which inventory ever since had been and still was in the possession of the company, was not sufficient, as a specific allegation that the requisite proofs of loss were filed, where a copy of the policy was annexed and specified in detail what the proofs of loss should contain, and the inventory alleged failed materially to comply with such requirements.
The defect was not cured by the general allegation under Code of Civil Procedure, section 533, which provides that in pleading the performance of a condition precedent it is not necessary to state the facts constituting performance, but the party may state generally that be has " duly performed all the conditions;" the word "duly" being omitted.
An allegation that sixty days had elapsed after proofs of loss were received by defendants before the action was commenced was necessary, where the policy specifically provided that the loss should not be payable until after sixty days, and that no suit should be sustainable' until full compliance with all the requirements of the policy.
(Decided March, 1902.)
Appeal from Special Term, Erie county.
Clemens v. American Fire Insurance Company of Philadelphia.
Action by John Clemens against the American Fire Insurance Company of Philadelphia, Pa. Judgment sustaining a demurrer to the complaint, and plaintiff appeals. Affirmed.
Phillip V. Fennelly, for appellant.
Seward A. Simons, for respondent.
WILLIAMS, J.-The judgment appealed from should be affirmed, with costs.
The action was brought upon a policy of insurance to recover for the loss of household furniture destroyed by fire. The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The particular points made were (1) that there was no sufficient allegation of the rendering of proofs of loss to the defendant pursuant to the terms of the policy; (2) that there was no allegation that sixty days had elapsed after the proofs of loss were received by the defendant before the action was commenced. These were conditions precedent to a right to recover in the action.
There was no specific allegation as to rendering proofs of loss, except that the plaintiff filed a complete inventory of the property destroyed and injured, with the quantity and cost of each article, and the amount claimed thereon, which inventory ever since had been, and still was, in the possession of the defendant. The policy, a copy of which was annexed to the complaint, specified in detail what the proofs of loss should contain, and the inventory alleged failed very materially to comply with the provision of the policy. It failed to furnish anything like the amount of information required by the specifications as to the proofs of loss. If it had been alleged that this inventory was rendered as the proofs of loss, and that it had been re