Spano v. Home Insurance

In an action to recover the amount of a claimed loss under a standard fire insurance policy, plaintiff appeals from an order of the Supreme Court, Sullivan County, dated August 25, 1960 and entered in Orange County on August 30, I960, which granted defendant’s motion’for judgment on the pleadings (Rules Civ. Prae., rule 112) and dismissed the complaint on the merits. Order modified by striking out its decretal paragraph and by substituting therefor a provision granting the motion and dismissing the complaint, but with leave to plaintiff to serve an amended complaint. As so modified, order affirmed, with $10 costs and disbursements to plaintiff; the amended complaint to he served within 20 days after entry of the order hereon. In our opinion, plaintiff should be given the *851opportunity to overcome her technical error in failing to plead defendant’s waiver of the policy provision which requires that an action on the policy shall be “ commenced within twelve months next after inception of the loss.” Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.