
    (82 Hun, 363.)
    GILL v. AETNA LIVE-STOCK INS. CO.
    (Supreme Court, General Term, Third Department.
    December 4, 1894.)
    L Insurance—Action on the Policy—Complaint.
    The complaint in an action on an insurance policy, which does not allege that there was any default in payment by defendant of any sum due on the policy, does not state the cause of trial.
    8. Pleading—Amendment on Appeal.
    Amendment of complaint on appeal will not be allowed, where plaintiff’s attention is called to the defect at the trial.
    8. Same—Objection Cubed.
    Where the complaint in an action on a live-stock insurance policy alleges the death of the animal insured, but does not allege default in payment of any sum due on the policy, the defect is not cured by an admission in the answer of the death of the animal, where that fact alone was not sufficient to create a liability.
    Appeal from circuit court.
    Action by William F. Gill against the Aetna Live-Stock Insurance Company. From a judgment in favor of plaintiff, rendered on a trial by the court, a jury having been waived, defendant appeals.
    Reversed.
    The defendant, before any evidence was offered, moved that the complaint be dismissed on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied by the court, and the defendant excepted. The plaintiff thereupon asked for judgment upon the pleadings, and the defendant conceded, for the purpose of the motion, that the plaintiff was the owner of the horse, for the loss of which the action was brought, and that the defendant’s mortuary fund was sufficient to pay the plaintiff’s claim. On these facts and the pleadings in the action the judge granted plaintiff’s motion for judgment, to which ruling and decision the defendant objected and excepted, and, from the judgment entered for the plaintiff, the defendant appeals.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Cameron & McArthur, for appellant.
    Charles R. Patterson, for respondent.
   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 any default in the payment by the defendant, or that any sum was due on the contract. Krower v. Reynolds, 99 N. Y. 245-249, 1 N. E. 775; 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 section 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 section 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, 21 N. E. 703, 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 ho 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 as set 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.  