
    William F. Gill, Resp’t, v. Aetna Live-stock Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    1. Pleadings—Complaint—Insurance.
    The complaint on an insurance policy is defective, where it fails to allege-a default in payment by defendant of any sum due thereon.
    2. Same-Amendment.
    An amendment of the complaint will, not be allowed on appeal, where plaintifl’s attention was called to the defect on the trial.
    3. Same—Admission in answer.
    A defect in the complaint in failing to allege facts sufficient to constitute a cause of action, is not cured by an admission in the answer, which does not cover all the facts necessary to be established by the plaintiff to create-a liability or prove a breach by the defendant.
    Appeal from a judgment in favor of plaintiff, rendered by the-court, without a jury.
    
      Cameron & McArthur, for app’lt; Charles R. Patterson, for resp’t.
   Mayham, P. J.

The complaint in this case does not state a. cause of action. The insurance policy was a contract on which an action could only be maintained after a breach. Proof of all the facts alleged in the complaint, undisputed by other evidence, would not entitle the plaintiff to recover, and this seems to be conceded by the plaintiff. There was no allegation that there was-an y default in the payment by the defendant, or that any sum was due on the contract. Krower v. Reynolds, 99 N. Y. 245-249 ; Keteltas v. Myers, 19 N. Y. 231-233 ; Tooker v. Arnoux, 76 N.Y. 397. These and other authorities which might be cited show that the settled rules of pleading require, in actions on contract, that the complaint must allege a breach to authorize a"recovery; and a complaint not containing such an allegation may, under § 499 of the Code of Civil Procedure, be attacked at the trial for such defect. That objection was made by the defendant on the trial of this action, and was overruled. That ruling, we think, was erroneous.

But it is insisted that the defect could have been cured by amendment at the trial, and that it may now be amended on this appeal under § 723 of the Code of Civil Procedure. That section provides for the amendment on appeal in furtherance of justice, and on such terms as may be just, and it also provides for disregarding the defect which does not affect a substantial right; but I do not think that this case is one in which we should exercise the power conferred by that section of amending on this appeal, or disregarding the defect. The attention of the plaintiff was sharply called to the defect in the complaint on the trial, and he did not then call upon the court to exercise its power of granting an amendment of the complaint, but rather invoked and obtained a determination of the trial court on the question of the sufficiency of the complaint. "The defendant had a right, therefore, to rely at its own risk upon the objection and exception ; and it would"not be in furtherance of justice on this appeal to relieve the plaintiff by amendment, and thus throw the burden and expense of the litigation on the defendant, when, if we are correct in holding this complaint insufficient, he was right, and the plaintiff wrong, before the trial court. Nor do I think the defect was cured by the answer. The case is different from Cohu v. Husson, 113 N. Y. 662 ; 23 St. Rep. 504, relied upon by the plaintiff. In that case the note, upon its face, showed that it was past due, from which fact the law would imply a liability; and its execution having been admitted, and no allegation of payment being alleged, the existence of an outstanding unpaid demand arose from those facts, which became payable at the time of the maturity of the note. It is true that the answer in this case admits the death of the horse; but, under the conditions of the policy asset out in the complaint, that alone does not necessarily create a liability. Other conditions to create a liability of the defendant are contained in the policy which are not admitted, and which would require proof before it could be claimed that nonpayment constituted a breach by the defendant of the terms of the contract. The admission, therefore, in the answer, does not cover all the facts necessary to be established by the plaintiff to create a liability or prove a breach by the defendant. We think, also, that there were other material allegations of the complaint which were controverted by- the answer, upon which the plaintiff was required to introduce proof as the answer took issue upon them, and that it was error for the learned trial judge to find in favor of the plaintiff upon the complaint alone, unsupported by proof upon these controverted questions.

Judgment must be reversed, and a new trial granted; costs to abide the event.

All concur. _  