
    Mary A. McArdle and Others, Respondents, v. Royal Insurance Company, Limited, Appellant.
    Third Department,
    November 13, 1913.
    Pleading—action on fire insurance policy — motion to compel plaintiff to reply to defense of payment to mortgagee.
    Where, in an action on a policy of fire insurance, containing the usual provision that loss, if any, be payable to the mortgagee, with privilege to the insurance company of being subrogated to the rights of the mortgagee, it appears that on the day after the commencement of the action the defendant paid the full amount of the policy to the mortgagee, and in its answer denied the material allegations of the complaint and set up as a defense payment and arson, a motion by the defendant to compel the plaintiff to reply to the defense of payment should be granted.
    Appeal by the defendant, Eoyal Insurance Company, Limited, from an order of the Supreme Court, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on the 9th day of May, 1913, denying the defendant’s motion to compel plaintiffs to reply to the first defense contained in the answer.
    
      Cardozo & Nathan [Edgar J. Nathan and Raymond Reubenstein of counsel], for the appellant.
    
      John F. O’Brien [William E. Woollard of counsel], for the respondents.
   Howard, J.:

The plaintiffs own property in the city of Albany, and on June 7, 1912, the date of the fire, they carried insurance with the defendant. In the policy was the usual provision that loss, if any, be payable to the mortgagee as its interest should appear, with privilege to the insurance company of being subrogated to the rights of the mortgagee. After the fire, proofs of loss were duly presented to the defendant, but the defendant did not pay the claim. On January 7, 1913, the plaintiffs began this action on the policy; on January eighth the defendant paid the full amount of the policy to the mortgagee. The defendant answered the complaint denying material allegations therein and setting up as a defense the fact of this payment; also the defense of arson. A motion was made by the defendant to compel the plaintiffs to reply to the defense of payment; the motion was denied and an appeal brings the matter to us.

The defense seems to be complete on its face. The policy imposed upon the insurance company the duty to pay the loss in case of fire to the mortgagee. The defendant alleges in its answer that it has done this; if this be so there can be no further recovery — no recovery at all by the plaintiffs. If the plaintiffs have any way of meeting this apparently perfect defense they should be compelled to disclose it by a reply. By so doing they clarify and simplify the issues and narrow the trial down to its smallest possible limits. If there be no way open to the plaintiffs to overcome this defense, a reply, or a failure to reply in case no reply can be made, puts the defendant in position to move for judgment on the pleading. It is well that the issues be distinctly defined before a trial begins. The court should know and everybody concerned, as far as maybe, should know what issues are to be tried when the litigants enter the court room. This saves time, this prevents surprise, this promotes justice.

The order appealed from should be reversed, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.  