
    Charles H. Bellinger, Respondent, v. The German Insurance Company of Freeport, Appellant.
    
      Insurance — equitable action to set aside an award and to recover the full amount of the policy — when the plaintiff fails to-establish his right to equitable relief he stna/y not recover at law where the suit is brought before the expiration of sixty •days, at the expiration of which time after the making of the award the award became due.
    
    ■July 29, 1901, a loss occurred under a standard policy of Are insurance. Appraisers appointed pursuant to the terms of the policy made an award on February 28, 1902. The policy provided that such award should,become due and payable sixty days from the receipt by the insurance company of the ,certidcate of the appraisers, and also that “ No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the Are.”
    April 7, 1902, before the expiration of the sixty days, the insured brought an action in equity, against the insurance company to set aside the award of the appraisers and to recover the full amount of the policy on the ground that the appraiser of the insurance company was prejudiced and unfair and that advantage was taken of the insured’s appraiser in securing the award.
    
      Meld, that the plaintiff having failed upon the trial to establish grounds for equitable relief, the Special Term had no power to retain jurisdiction of the case and aw^trd the plaintiff judgment for the amount found due by the appraisers, as the plaintiff’s pleading and proof affirmatively showed that no sum was due. and payable to him at the time he brought the action.
    The rule, that where the court obtains equitable jurisdiction it may retain the case, and adjust the controversy up to the time of the trial, does not apply-where the equitable considerations fail and the complaint does not state facts- ' entitling the plaintiff to a judgment at law.
    Jenks and Hooker, JJ., dissented.
    Appeal by the defendant, The German Insurance Company of Freeport, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 25th day of June, 1903, upon the decision of the court rendered after a trial at the Orange Special Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 3d day of April, 1903, striking this case frond the Trial Term calendar and sending the same to the Special Term for trial.
    ■William D. Murray, for the appellant.
    
      Henry Bacon [Joseph Merritt with him on the brief], for the respondent.
   Woodward, J.:

On the 22d day of July, 1901, the defendant issued a New York standard policy insuring the plaintiff’s premises against fire in the sum of $1,600. On the twenty-ninth day of the ■ same month the premises^ were destroyed by fire, and on the sixth day of September proofs of loss were served, and subsequently, under the terms of the policy, the plaintiff and defendant, with other insurance companies, entered into an agreement for an appraisal, resulting in an award on the 28th day of February, 1902,- joined in by the two appraisers and the umpire selected by such appraisers, in which the defendant’s liability was fixed at $1,450.83. This award under the terms of the policy became due and payable sixty days from the receipt by the defendant of the certificate of the appraisers, or on the 28th ■ day of April, 1902, and the policy, prescribed pursuant to statute, provides that “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or ■ equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” Notwithstanding the fact that the amount found by the appraisers was not payable until sixty days after the making and filing of the award, the plaintiff on the 7th day of April, 1902, began. an equitable action to set aside the award of the appraisers and to recover the full amount of the insurance .under the policy on the ground that the appraiser appointed by the company was prejudiced and unfair, and that advantage was taken of the plaintiff’s appraiser in securing the award.

•Upon the trial of the action the facts were not disputed, and the evidence failed to support the allegations of unfairness on the part of the defendant’s appraiser. The defendant by its answer, as well as by its motion to dismiss the complaint, raised the question of the sufficiency of the complaint, as well as of the proof, to establish a cause of action, no amount being due at the time of its commence-: mént; but the learned court at Special Term, holding that the plaintiff had failed to establish grounds for equitable relief, retained the case and gave judgment for the plaintiff for the amount found due by the appraisers. We are of opinion that this was' error. The complaint does not allege, and the proofs do not show, that sixty days had elapsed from the time of completing the appraisal; this was a condition precedent to the right of the plaintiff to recover upon, the policy in an action at law or in equity, and he could gain no right to recover upon the policy in an equitable action to set aside the appraisal without having first established the fraudulent character of such appraisal, and, failing in this, his right to any relief was at an end. He had stipulated, under the provisions of the law, that the sum should.not be due until sixty days after the appraisal where such appraisal was demanded. The defendant had a right under this contract to have an appraisal and to have sixty days’ time after the making of such appraisal. It may be, if the defendant had been guilty of fraud in making the appraisal, the court would have been authorized to set aside such appraisal, and to give the plaintiff permission to amend his complaint so as to state a complete cause of action (see Code Civ. Proc. § 723), but to permit one to set up a cause of action requiring equitable relief, and when he has. failed to-establish a right to such relief to retain the ease for the purpose of granting relief to which he was not entitled, under his pleadings or his proof, either' in equity or law, is extending the jurisdiction of equity beyond any point which is supported by reason or authority. If we strike from the case all of the allegations in reference to the alleged fraud of the defendant in selecting an unfair appraiser, the action becomes purely one to recover a sum of money, and the complaint does not state facts sufficient to constitute a cause of action, of. that character. There is no evidence to support the facts which were alleged as. a,basis for eqnitable interference, and it would be a most remarkable thing if a man could, by falsely alleging facts calling for equitable cognizance, gain a right to prosecute an action at law without alleging facts sufficient to constitute such a cause of action. In Maher v. Home Insurance Co. (75 App. Div. 226), closely analogous to the case at bar, where the plaintiff failed to establish his equitable right to relief, the court held that the case should have been retained and the plaintiff awarded judgment for the amount of the award, but there was no question in that case that the plaintiff had set forth and established by the evidence facts which would have entitled him to a judgment in an action at law. The court say: In the case at bar all the issues were submitted to the court. All the facts necessary to sustain the plaintiff’s clai/m for the full amount of his damages being amerred in the complai/nt a/nd homing been actually litigated upon the trial, the court should have awarded a personal judgment against the defendant for the amount appearing to be due. Whether it be deemed a legal or an equitable action,, it is clear that such a judgment against the defendant would have been one consistent with the case set forth in the complaint and embraced within the issues, and, therefore, such an one should have been granted.”

It was a condition precedent of the plaintiff’s right to recover at all that he should show that there was a sum due and payable at the time his action was brought; he had himself agreed to this as a condition of invoking the aid of the courts, and he could not recover without alleging and proving that the cause of action had actually accrued at the time of serving the summons and complaint. (Thrall v. Cuba Village, 88 App. Div. 410, 413, and authorities there cited.) His rights depended, after the failure of his equitable averments, upon the strength of his legal cause of action, and his complaint did not state the necessary facts, and his pleadings affirmatively showed that his action was brought before the time limited by his policy had expired. The defendant owed him no obligation on the 7th day of April, 1902, the day the action was begun, and his legal rights are to be determined as of that date.

It is undoubtedly true that where the court obtains equitable jurisdiction, it may retain the case and adjust the controversy up to the time of the trial (Whaley v. City of New York, 83 App. Div. 6, 7, and authorities there cited), but it may not do this where the equitable considerations fail and the complaint does not state facts which entitled the plaintiff to a judgment at law.

The judgment appealed from should be reversed.

All concurred, except Jenks and Hooker, JJ., dissenting.

Judgment reversed and new trial granted, costs to abide the event.  