The order appealed from struck out eacn of the four defenses referred to in the statement of facts. The first three defenses were stricken out on the ground that they were “ not germane ” to the issues; and the fourth defense on the ground that it was a mere legal conclusion.
After the plaintiff had moved to strike out the defendant’s separate defenses, the defendant served motion papers to dismiss the complaint. The parties, by written stipulation in the record, ask the court to determine whether the complaint states a cause of action. The complaint will be first considered, and all of its allegations are to be taken as verity in determining whether it states a cause of action.
The action is one at law to recover damages for the fraud and deceit of the defendant. The essential constituents of such an action are false representations, knowledge of the falsity, deception and injury. Pecuniary loss to the deceived party is absolutely essential to the maintenance of the action. Fraud and deceit alone do not warrant the recovery of damages. Deceit and injury must concur. (Urtz v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 170.) Measuring the complaint by this rule of law, it clearly states a cause of action.
In further support of the complaint it is argued that the insurance money collected by the Steamship Company was had and received by the Steamship Company for the benefit of the Bank. There can be no doubt that a carrier or other bailee has an insurable interest in the goods intrusted to its care. It has been many times held that when a bailee avails himself of his right to insure, he may insure not only his own interest but also the goods themselves against loss to the owner. There are many cases which hold that where the policy of insurance taken out by the bailee reads that it is for his or its own benefit, or for the account of whom it may concern, or in trust, or other like words showing an intent to insure the owner against loss, the owner may subsequently ratify such *715insurance made by the bailee within a reasonable time after the occurrence of the actual loss. (See Stillwell v. Staples, 19 N. Y. 401; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527; Joyce Ins. § 1692 et seq.) The policy of insurance in the case at bar is not before us, but from the complaint it appears that the carrier simply insured itself against its liability for the loss of the goods. The attention of the court has not been called to any case which holds that where a bailee insures against its own liability only, the owner has the right to collect the insurance moneys remaining after the bailee has collected its charges against the goods. In the absence of the terms of the policy we are, therefore, unable tó determine whether or not the Bank and its assignee had an interest in the insurance moneys.
There remains the question as to whether or not the defenses pleaded are germane to the cause of action stated in the complaint. In the Urtz Case (supra) it was in effect held that the plaintiff in a cause of action such as this must show in the first instance that the cause of action which had been yielded up by reason of the deceit of the defendant was in truth a valid existing claim against the defendant originally. In the case at bar, therefore, the first inquiry that presents itself is, would the defense pleaded tend to defeat the plaintiff’s claim that the Bank had a valid cause of action against the Steamship Company at the time the alleged fraud was committed and when the Bank was threatening to sue the Steamship Company. From the complaint it appears that the threat to sue the Steamship Company was made after the accrual of the claim.
The provisions in the bill of lading providing for the presentation of claim within a certain time, and for the commencement of an action within six months, have been held to be valid limitations upon the carrier’s legal liability. As the shipment involved herein was from a foreign country to the port of New York, the recent change made by the First Cummins Amendment to the Interstate Commerce Act (38 U. S. Stat. at Large, 1196, 1197, chap. 176, amdg. 24 id. 386, § 20, as amd. by 34 id. 593, 595, § 7; Van Pelt v. Barrett, 205 App. Div. 332) does not seem to modify the validity of the limitations contained in this bill of lading. These limitations of liability would clearly be germane in an action against the *716carrier for the loss of the bags, and, therefore, it must be held that such limitations are germane to the plaintiff’s cause of action. It may well be that the plaintiff can prove facts creating an equitable estoppel against the Steamship Company. If the Bank had pursued a remedy against the Steamship Company based upon the liability of the carrier, it would have been competent for the carrier to set up the terms of the bill of lading, and, upon such proof being adduced, it would also have been competent to show that the Steamship Company, through its officers and agents and by its conduct, had ratified the claim as a valid one and that it would be estopped from standing upon any of the conditions as to limitations of liability. All of these facts go to an essential element of the plaintiff’s cause of action, namely, that there must be injury concurring with deceit.
For the same reason the second defense, which in effect pleads the Harter Act, otherwise known as the Foreign Bills of Lading Act of 1893 (27 U. S. Stat. at Large, 445, chap. 105), must be allowed to stand as being germane to the issue, although that defense also is subject to being defeated by acts and conduct of the Steamship Company amounting to an equitable estoppel.
The third alleged defense, namely, that if any liability existed for loss and damage, as alleged in the complaint, the Bank now has and at all times since the said shipment has had a right to proceed in rem against the steamship Mohican, is stricken out. The fact that the Bank may have had more than one remedy does not compel its assignee to pursue any particular remedy. He had the privilege of choice, and he was within his rights in electing to pursue his remedy against the defendant.
The fourth defense was properly stricken out by the trial judge upon the ground that no facts were pleaded and that it was a mere conclusion of law.
In pleading the first three defenses the defendant pleaded, as introductory to each of them, the following: “ Defendant re-alleges the allegations hereinbefore contained as if the same were herein alleged at length and in detail.” This allegation was in violation of rule 90 of the Rules of Civil Practice and was properly stricken out.
The order should be modified by directing that the first and second defenses be allowed to stand as being germane to the issue, and as thus modified affirmed, without costs.
Kelly, P. J., Jaycox, Young and Kapper, JJ., concur.
Order modified by directing that the first and second defenses be allowed to stand as being germane to the issue, and as thus modified affirmed, without costs.