Opinion
June, 1904.
Donald McLean, for appellant.
Antonio C. Astarita (Louis Jersawitz, of counsel), for respondent.
In an action to recover upon a policy of fire insurance, the plaintiff served upon the defendant an amended complaint in which he failed to allege the facts showing performance of conditions. This was not cured by the general allegation permitted by section 533 of the Code of Civil Procedure, because the word "duly," a word of substance, not of form, was omitted (Clemens v. American Fire Ins. Co., 70 A.D. 435), nor by any interlineation of that word in the original amended complaint, for it is recognized "that a defendant has a right to consider the complaint which is served upon him, or his attorney, as that alone which he is required to answer, and that it is upon the issues raised by his answer to this complaint that the cause is to be tried." Trowbridge v. Didier, 4 Duer, 448, 450. Therefore, the motion by the defendant, at the opening to dismiss on the ground that the complaint failed to state facts sufficient to constitute a cause of action, was proper and was saved by his exception to its denial. The judgment must, therefore, be reversed and a new trial ordered.
FREEDMAN, P.J., and SCOTT, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.