
    MURRAY v. NEW YORK INSURANCE COMPANY.
    
      N. Y. Court of Appeals,
    April, 1881.
    Bight to Open and Close on Trial.—Appeal.—Insurance.— Pleading.—Burden of Proof.—Answer asking Production of Original Policy sued on.
    The denial to the party holding the affirmative of the issue, of the right to open and close upon the trial, is a subject of review in the court of appeals.
    
      All that is necessary in the complaint to make out a cause of action upon a policy of life insurance, is a statement of the contract, the death of the assured and the failure to pay as agreed; and an allegation that the death of the assured was not caused by the breaking of any of the conditions of the policy is unnecessary, and does -r not require proof.
    An unnecessary allegation inserted in the complaint, although denied by the answer, must be disregarded, and will not deprive the defendant of the affirmative of the issue if he would be otherwise entitled to it.
    In an action on a policy of insurance, when the answer admits the issuing, but alleges, as a breach of the conditions of the policy, that the insured died in consequence of a violation of the laws of the State, the burden of proof is upon the defendant.
    In an action on an insurance policy, merely asking leave in the answer to refer to the original policy, relates only to the accuracy of the copy set out in the complaint, and is not a denial of its terms; and presents, therefore, no issue for trial, and does not entitle the plaintiff to the affirmative on the trial.
    
      It seems that, notwithstanding the request of the answer, the plaintiff would be entitled to judgment without producing the original.
    Appeal from a judgment of the general term of the supreme court in the second department, affirming a judgment rendered in favor of plaintiff.
    Gertrude B. Murray sued the New York Life Insurance Company on two policies of insurance upon the life of her husband.
    
      Joseph H. Choate, for defendant, appellant.
    
      Charles II. Winfield, for plaintiff, respondent.
   Miller, J.

The right of a party holding the affirm-

ative upon an issue of fact upon trial to open and close the evidence and upon the final submission of the case to the jury to reply in summing up the case, is too well settled to admit of any question. And when such right is denied by the judge, upon the trial, such denial furnishes ground for exception which is the subject of review upon appeal (Millerd v. Thorn, 56 N. Y. 402). The defendant in this case clearly held the affirmative of the issue upon trial, and the judge erred in refusing to allow the defendant to open and close the case in accordance with such right. The complaint was upon two policies of insurance, each of which contained a provision as follows, that, “If the person whose life is hereby insured shall .... die in or in consequence of a duel or of the violation of the laws of any nation, state or province, then and in every such case, this policy shall be null and void.”

It alleged among other things, that the death of the insured was not caused by the breaking of any of the conditions and agreements in either of the policies. This allegation was not required, and all that was essential to make out a cause of action was a statement of the contract, the death of the assured and the failure to pay as provided. The insertion of an unnecessary allegation in the complaint, which the plaintiff was not required to aver or to prove in order to establish his case, could not and did not deprive the defendant of his right to the affirmative, if such right actually existed. As the allegation referred to was not properly there for the purpose of making out a good cause of action, the complaint must be regarded as if it contained no such averment. The answer of the defendant denied this allegation of the complaint, and set up that the insured died in consequence of a violation by him of the laws of the State of New York, and in consequence of an unlawful assault committed by him upon one Robert H. Berdell. It also admits that the defendant insured the life of Wisner Murray by two policies of insurance, copies of which were annexed to the complaint, and begs leave to refer to the originals thereof when they shall be produced. This allegation, we think, was not a denial of the policies and did not require their proof. In fact, it admitted their existence and validity, simply asking that the originals instead of copies be taken as the contract, which was all the plaintiff claimed. The only facts which were really to be tried were those averred in the affirmative defense set up, that Wisner Murray died in consequence of a violation of the laws of the State. If the defendant introduced no such evidence, by the answer which admitted the plaintiff’s cause of action, she was entitled to recover the amount of the policies. The defendant had alleged a breach, and unless he proved it no defense was made out, and the plaintiff was not called upon to disprove what had not been established by evidence. No presumption could arise in favor of the defendant without proof that the assured died from a violation of law, and unless this was established the plaintiff would have been entitled to a judgment upon the pleadings. The rule is well established that in an action upon a policy of insurance when the answer admits the issuing of the policy, and the allegations in the complaint, and alleges a breach of its conditions, the burden of proof is upon the defendant, and the plaintiff is entitled to recover unless the defendant satisfies them by a preponderance of evidence that the conditions have been broken (Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79; Van Valkenburgh v. American Popular Life Ins. Co., 70 Id. 605; Elwell v. Chamberlain, 31 Id. 611). There is no ground for claiming that the answer did not admit all that was essential to entitle the plaintiff to a judgment, and there is no such denial of any material fact in the complaint as required any proof on the part of the plaintiff to maintain the action. Merely asking leave to refer to the original policies when produced, related to the accuracy of the copies, was not a denial of their terms and conditions, and presented no issue for trial.

The plaintiff, we think, would have been entitled to a judgment without their production, and upon the failure of the defendant to prove his affirmative defense that’the deceased died in or in consequence of a violation of law, and after the court had held that the plaintiff was entitled to the affirmative, such testimony could have no effect in determining the right of the defendant to the affirmative.

As for error stated the judgment must be reversed, and as a new trial may present a different state of facts, it is not necessary to consider the other questions raised upon the trial.

Judgment reversed and new trial granted, with costs to abide the event.

All the judges concurred.  