
    John Clemens, Appellant, v. The American Fire Insurance Company of Philadelphia, Pennsylvania, Respondent.
    
      Insurance policy — what allegation in an action thereon is insufficient' to simo that proofs of loss were served—it must be alleged that jixty.,days have elapsed since such service—a plea of, peí for manee must usé the word “ duly.”.
    
    Where, by the terms of a policy of fire insurance, the service of ■ proofs of loss is made a condition precedent to the right to maintain an action thereon, a complaint in such an action is demurrable which contains no allegation of the service of any proofs of loss, except that the plaintiff filed a complete inventory of the property destroyed, with the quantity and cost of each article and the amount claimed thereon, which inventory had been and still was in the posses- ■ sion of the defendant, when it does not allege that such inventory (which did not contain all the information required to be set forth in the proofs of loss) was rendered as the proofs of loss and that it was received and retained by the defendant without objection, and that the defendant had required no further ■ or other proofs of loss.
    Where the policy in suit specifically provides that the loss should not become payable until sixty days after the proofs of loss are received by the company and that no suit shall be sustainable upon any claim until after full compliance with all requirements of the policy, an allegation that sixty days have elapsed since'’the proofs of loss were received by the defendant, before the action was commenced, is essential to the sufficiency of the complaint.
    A pleader seeking to take advantage; of section 533 of the Code of Civil Procedure, providing, “In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state generally that he or the person whom he represents, duly performed all the conditions on his part,” must use the word “duly” in his allegation of performance,
    Appeal by the plaintiff, John Clemens, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 9th day of July, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining a demurrer to the complaint.
    
      Philip V. Fennelly, for the appellant.
    
      Seward A. Simons, for the respondent.
   Williams, J.:

The judgment appealed from should be affirmed, with costs.

The action was brought upon a policy of insurance to recover for the loss of household furniture destroyed by fire. The demurrer was upon the ground that the complaint did not state facts sufficient. to constitute a cause of action. The particular points made were : First. That there was no sufficient allegation of the rendering of proofs of loss to the defendant pursuant to the terms of the policy.' Second: That there was no allegation that sixty days had elapsed after the proofs of loss were received by the defendant before the action was commenced. These were conditions precedent to a right to recover in the action.

¡ There was no specific allegation as to rendering proofs of loss, except that the plaintiff filed a complete inventory of the property destroyed and injured, with the quantity and cost of each article and the amount claimed thereon, which inventory ever since had been and still was in the possession of the defendant.

The- policy, a copy of which was annexed to the complaint, specified in detail what the proofs of loss should contain, and the inventory alleged failed very materially to' comply with the provision of the policy. It failed to furnish anything like the amount of information required by the specifications as to the proofs of loss. If it had been alleged that this-inventory was rendered as the proofs of loss, and that it had been received and retained by the defendant without objection and that the defendant had required no further or other proofs- of. loss to be .furnished, it might have been sufficient; but the allegation of the complaint fell far short of this. It was manifestly insufficient as a specific allegation of performance of this condition precedent to the right to recover. Nor was this defect cured by the general allegation under section 533, Code of Civil Procedure, which provides: “ In pleading the performance of a condition .precedent in a contract, it is not .necessary to state the facts constituting .performance; but the party may state generally that he or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance.”

.The word duly was omitted from the complaint, and there was, therefore, a failure to comply with the section quoted, and plaintiff was entitled to no benefit thereunder.

The word’ duly in this, and other like provisions of the. Code, has been held to be one of substance and not .of form'merely. (Les Successeurs D'Arles v. Freedman, 53 N. Y. Super. Ct. 519 ; Baxter v. Lancaster, 58 App. Div. 380 ; People ex rel. Batchelor v. Bacon, 37 id. 414; Tuttle v. Robinson, 91 Hun, 187, 189; Brownell v. Town of Greenwich, 114 N. Y. 518.)

There was no allegation in the complaint that sixty days had elapsed since the proofs of loss were received by the defendant before the action was commenced. Such an-allegation was necessary. (Porter v. Kingsbury, 5 Hun, 598; 71 N. Y. 588; Reining v. City of Buffalo, 102 id. 312.)

In the first case it was held that a complaint in an action upon an undertaking upon appeal given pursuant to section 348 of the old Code, which failed to allege service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from, ten days before the commencement of the action, was defective; that the notice was a condition precedent to the commencement of the action, and in the absence of the allegation the complaint did not state a cause of action. The Code prohibited the commencement of the action until ten days after the service of the notice.

In the other case it was held necessary to allege in the complaint, in an action against the city for a tort, the presentation of the claim to the common council and the expiration of forty days thereafter, before the commencement of the action ; that the provision of the charter requiring such presentation of claim and prohibiting the bringing of the action until forty days had elapsed created a condition precedent. The court there said, in referring to Porter v. Kingsbury: “ There the act required to be performed, constituted no part of the cause of action, but was provided, as in this case, to shield the parties liable from cost and trouble, in case of their willingness to pay the claim without suit after notice given. It is immaterial whether a condition be imposed in the statute giving a right of action, or be provided by contract, or exists by force of some principle of common or statute law, the complaint must, by the settled rules of pleading, state every fact essential to the cause of action, as well as those necessary to give the court jurisdiction to entertain the particular proceeding.”

In the case we are considering it was specifically provided by the policy that the loss should not become payable until sixty days after proofs of loss were received by the company, and that" no" suit should be sustainable upon any claim until after full compliance with all requirements in the policy.

The rule laid down in the cases cited is applicable to this case. The views here expressed lead to the. conclusion that the judgment should be affirmed, with costs.

McLennan, Spring, Hiscock and Davy, JJ., concurred.

. Interlocutory judgment affirmed, with costs, with leave to the plaintiff to plead over upon payment of costs of the demurrer, and of this appeal.  