Danerhirsch v. Great Eastern Casualty Co. , 160 N.Y.S. 1015 ( 1916 )

SHEARN, J.

[1,2] This action is brought to recover under a policy insuring against loss from burglary in plaintiff’s premises “provided there shall be visible marks upon the premises of force and violence in forcing entry or exit.” The complaint alleges that the premises were broken into and “burglarized,” but fails to allege that there were any visible marks upon the premises of force and violence in forcing entry or exit, without proof of which there can be no recovery. Rosenthal v. American Bonding Co., 207 N. Y. 162, 107 N. E. 716, 46 L. R. A. (N. S.) 561. Therefore the complaint, to which the contract of insurance is annexed, fails to disclose a cause of action. Facts which are absolutely essential to a recovery must be pleaded. They are not included in the classification of “evidentiary facts” merely because they have to be proved. “Evidentiary facts,” the pleading of which is dispensed with, are not those essential to the existence of a cause of action. It might as well be claimed that the allegation of a loss is evidentiary.

The order is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to amend the complaint within six days on payment of costs. All concur.