The opinion of the court was delivered by: BYERS
This is a motion for an order dismissing suit for the reason that it appears upon the face of the complaint that the dispute or controversy does not exceed the sum of $3,000.00 exclusive of interest and costs. Such a motion is contemplated by the provisions of title 28 U.S.C. § 80 (28 USCA § 80).
There are three causes of action pleaded in the complaint, in which the plaintiff demands judgment for the alleged breach of three policies of insurance, in the sum of $54,340.00 with interest as to the first, $6,270.00 with interest as to the second, and $2,508.00 with interest as to the third.
The plaintiff alleges that he resides in this district and, as the defendant does not, diversity exists.
The basis of the first claim is a policy of accident insurance issued in 1924, covering bodily injuries through external, violent and accidental means, which, if wholly and continuously disabling the plaintiff from performing any and every kind of duty pertaining to his occupation, would entitle him to receive a weekly payment of $25.00; if suffered while a passenger on a public conveyance, double indemnity would apply.
The plaintiff, a waiter in a restaurant as stated in the policy, continued such occupation until August 15, 1928, when, being a passenger on a public conveyance, he was injured so as to render him, according to his claim, wholly and continuously disabled from performing any and every kind of duty pertaining to his said occupation, and it is alleged that he has been so disabled ever since the date of the accident and will continue to be so for the balance of his natural life.
From the last mentioned date and through the month of November, 1932, the defendant is alleged to have recognized the validity of the policy and during that period of time to have made to the plaintiff the agreed payments of $50.00 per week; the complaint alleges failure to continue the payments after November 30, 1932, although such were duly demanded, and although due medical proof of said whole and continuous disability was given and tendered to the defendant.
Paragraph fifteenth is as follows:
"Fifteenth. Thereafter and in addition thereto, said defendant did deliberately breach, reject and repudiate said policy of insurance with the plaintiff and it has done so without just cause and after recognizing its validity and binding force."
That the defendant denies.
In the sixteenth paragraph, it is alleged that one Williamson, the Brooklyn representative of the defendant, to whom the plaintiff's claim is said to have been referred, "stated definitely that the defendant repudiated said policy of insurance and would make no further payments to this plaintiff thereunder."
That allegation also is denied in the answer.
The plaintiff alleges due performance of all conditions of said policy upon his part to be performed up to the time of the breach and repudiation, and present ability and willingness to perform any and all such conditions.
The second cause is based upon a policy of life insurance issued by the defendant, which contains a section headed: "Permanent Total Disability Benefits," the ...