
    Israel Spingarn, Respondent, v. The National Surety Company of New York, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Insurance — requisites and validity of contract — actions on policies — pleading — sufficiency of answer.
    An allegation of the answer in an action to recover on a'policy of burglary insurance that the insured attempted to cheat and defraud the company, if established by competent proof, is a defense. \
    Plaintiff’s, allegation of due performance on bis part cannot be considered as a plea of nonviolation of any of the prohibitory clauses of the policy.
    Appeal by defendant from an interlocutory judgment of the City Court of the city of Rew 'York.
    Joseph L. Prager, for appellant.
    Herman Kahn, for respondent.
   Guy, J.

The defendant appeals from an interlocutory judgment sustaining a demurrer to the first and second defenses of the defendant’s amended answer. The action is brought to recover the sum of $1,000 upon a policy of burglary insurance.

The answer denies the material allegations of the complaint, and sets up two separate defenses, first, that the plaintiff’s assignor failed to keep books of account according to the terms and conditions of the policy, and second, that plaintiff’s. assignor avoided the policy by attempting to cheat and defraud the company in exaggerating his claim. The trial justice held that these defenses were insufficient for want of specific denials in the answer of the allegation of due performance of the conditions of the policy 'pleaded in the complaint. In so ruling, the learned judge erred. The allegation of fraud was new matter, vyhieh, if established by. competent proof, would constitute a defense to the action. Eagle Waist Co. v. Ocean Accident & Guarantee Corporation, 133 N. Y. Supp. 1031; Shaff v. United Surety Co., 142 App. Div. 465; Anibal v. Ins. Co. of North America, 84 id. 634.

A plea of due performance in the complaint cannot be considered as a plea of nonviolation of any of the prohibitory clauses of the policy. Rau v. Westchester Fire Ins. Co., 50 App. Div. 428.

The interlocutory judgment must, therefore, be reversed and the demurrer overruled with costs in this court and in the court below.

Seabury and Gerard, JJ., concur.

Interlocutory judgment reversed and demurrer overruled, with costs in this court and in court below.  