
    Josephine A. Cheever, Respondent, v. British-American Insurance Company of New York, Appellant.
    
      Mre insurance — a defense of fraud, must be pleaded.
    
    In an action to recover upon a policy of Are insurance, containing a clause that fraud and false swearing on the part of the insured shall vitiate the policy, evidence of such fraud and false swearing, is not admissible under a general denial.
    Defenses which assume or admit the original cause of action alleged, and are based upon subsequent facts or transactions which go to qualify or defeat such cause of action, must be pleaded and proved by the defendant.
    Appeal by the defendant, the British-American Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 24th day of September, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Donald McLean [Albert Ritchie with him on the brief], for the appellant.
    
      Hugo Wintner, for the respondent.
   Woodward, J. :

The defendant issued an insurance policy to the plaintiff for an amount not exceeding $2,000. One thousand dollars of this policy was written upon the household furniture and $1,000 on certain wines, liquors, etc., used upon the premises. The complaint alleges -ownership in the plaintiff, issuance of the policy, the payment of the premium and the destruction of the property during the life of the policy, and that the plaintiff had duly ¡performed all the conditions in said policy on her part' to be performed, and had given' diie notice and proof of loss to defendant. The answer denied knowledge or information sufficient to form a belief ás¡ to the ownership of the property insured, as to tlie destruction of the property by. fire, as-to-the amount of the loss and damage, and as to whether the plaintiff, had performed all of the conditions in said ¡policy on her part to be performed ; as to whether the plaintiff had] given due notice and due proof of loss, except that defendant admitted receiving notice of an alleged loss; that sixty days had elapsed.-since then,- and that payment of $2,000 had been demanded- and payment refused.

Upon the trial the plaintiff introduced evidence in support of the allegations of her complaint which-had beeh controverted, and the defendant placed witnesses on the stand to testify that some portions of the goods, alleged to have been in the building at the time of the fire, had been removed. This evidence, eompétent for the purpose of arriving at the amount of the .plaintiff’s loss) -was sought to be made use of by.the defendant as evidence of fraiud and false, swearing, which, under the terms of the policy, would vitiate the instrument. The learned trial justice refused to permit this use of the evidence, and charged the jury that there was no issue of fraud or false swearing tendered by the pleadings, and that there was no such question before them. This charge to the jury, with various intermediate rulings upon the samé point, constitutes the only question presented upon this appeal, the jury having found a verdict for .the plaintiff for $1,566 instead of the full face of the policy.

We are of opinion that the case does not. present reversible error. The defendant might disprove, under a general denial, anything which it was necessary for the plaintiff to establish, but it has never, been held, so far as we discover, that it was incumbent upon a plaintiff in an action of this character to prove, what the law presumes, that he has not been guilty of fraud. The'-general rule of pleading, which is in accord with reason,.is that defenses -which assume or admit the original cause of action! alleged, but are based; upon subsequent facts or transactions which ¡go to qualify or defeat it, must be pleaded and proved by the defendant. (Farmers' Loan & Trust Company v. Siefke, 144 N. Y. 354, 360.) The plaintiff pleaded and established by the evidence all of the facts made necessary by her policy, and she was entitled to recover, unless the policy had been forfeited by her fraud or false swearings If the defendant had reason to believe that it had been fraudulently dealt with, it was its duty to have alleged the facts constituting the fraud as a defense, in this way tendering an issue to be tried. This could not be done under a mere general denial of the allegations of the complaint, for the plaintiff was not called upon to prove absence of fraud. (See Fischer v. Metropolitan, Life Ins. Co., 37 App. Div. 576, 580.)

•' The judgment and order appealed from should be affirmed, with costs.

' Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.

Judgment and order affirmed) with costs.  