
    Elizabeth Meyers, Resp’t, v. The United Life Ins. Ass’n, App’lt.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed December 17, 1891.)
    
    Benefit societies—Pleading.
    Plaintiff’s husband was a member of defendant, his certificate calling for a sum of money equal to the amount received from one assessment, not exceeding $2,0u0. In an action on the certificate the complaint alleged that defendant, hy its agent, falsely alleged that plaintiff was not entitled to anything, but that defendant would pay her $1,000, which she had better accept or she would not get anything, which sum she accordingly accepted; that said statements were false in that she was entitled to receive and there was due her $2,000. On demurrer, Held, that the complaint was insufficient; that in order to recover she should have alleged that defendant could have realized on one assessment more than the sum of $1,000.
    Appeal from, order overruling demurrer to complaint, and from interlocutory judgment entered thereon.
    
      Harry Wilber, for app’lt; A. H Beavey, for resp’t.
   Fitzsimons, J.

The defendant issued to the plaintiff’s husband a policy of insurance on February 29,1891, payable to plaintiff upon her said husband’s death (within ninety days after proof of his death), a sum of money equal to the amount received from a death assessment, but not to exceed the sum of $2,000. Plaintiff’s husband died April 1, 1891.

The action is brought to recover the full amount of said policy.

The complaint alleges the issuance of the policy, death of plaintiff’s husband, and that due proof thereof was given to defendant, and that they fully performed all the conditions of said insurance-on their part.

It further alleges that on or about May 1, 1891, the defendant, through its agent, falsely and fraudulently represented to plaintiff that she was not entitled to anything under said policy, but that defendant would pay her $1,000; that she had better accept, otherwise she would not receive one dollar.

That relying upon such statements she was induced to and did accept $1,000.

That these statements were false in that plaintiff was entitled to receive, and that there was due her under said policy the sum of $2,000, which was known to defendant, and that therefore she was damaged for $1,000, for which amount she demands judgment.

The defendant demurred to the complaint upon the ground that the complaint failed to state facts sufficient to constitute a cause of action.

The demurrer was overruled, and from the order entered this, appeal is taken.

The plaintiff under the policy in question was entitled to receive only a sum equal to the amount received from a death assessment, not to exceed $2,000.

To entitle plaintiff to a recovery in this action it became her duty to- allege in her complaint that the defendant realized or could have realized from a death assessment more than the sum of $1,000, because if the defendant only received, or could have received, as the result of levying one death assessment the sum of one thousand or less, the plaintiff certainly suffered no damage, no matter what statements were made to her; she had no right to more than the result of one assessment, and if that did not exceed the sum paid her by defendant she is not entitled to a judgment herein for any amount. We cannot presume that the sum received or which might have been received was or might have been larger than $1,000. That is a fact which she must allege affirmatively in her complaint, fixing the amount in excess of that sum, and prove it upon the trial of the action. There is no such allegation in the complaint. Martin v. Equitable Ass'n, etc., 29 St. Rep., 421; O'Brien v. Home Benefit Society, 46 Hun, 426; 11 St. Rep., 810.

The statements in paragraph VIII of the complaint are mere legal conclusions and do not supply the omissions indicated.

We are therefore of the opinion that the special term justice erred in overruling the demurrer. The order of July 10, 1891, and the interlocutory judgment entered July 31, 1891, must be reversed, with costs to appellant, with leave however to plaintiff to amend the complaint herein within six days from notice of entry of general term judgment.

McCarthy, J., concurs.  