52 N.Y.S. 759 | N.Y. App. Div. | 1898
The plaintiff was the assignee of a policy of life insurance, issued by the defendant to one Henry A. Ostermoor upon the life of Ostermoor, payable to his personal representatives, and by Ostermoor assigned to the plaintiff. The defense substantially was that there was a breach of warranty by Ostermoor, who made untrue statements in the application. The defendant also claimed that there was an agreement that the policy should not take effect unless it was issued during the good health of the person to be insured, and that at the time it was issued to Ostermoor on the étli of December, 1895, lie was very sick and likely to die, and, therefore, the contract never had an inception. The complaint was dismissed by the learned trial
The policy was dated on die 4th of December, 1895. It purports to have been issued in consideration of the application for the policy and the statements and covenants therein contained, which are a part of the contract, and it insures the life of Henry A. Ostermoor in the sum of $10,000. Certain conditions are printed upon the back of the policy, in which it is stated, among other things, that if any statement made in the application is, in any rfespect, untrue, the policy shall be void. There is a limitation of this condition which need not be considered here. The policy itself contains no provision that it shall not take effect unless it is issued during- the good health of the insured, but in what was claimed to be 'the application, which was offered in evidence and received, there is an agreement by Ostermoor that there shall be no contract of insurance until a policy shall be issued by the company, and accepted subject to the conditions and stipulations therein contained, during the good health of. the person to be insured. It appears, therefore, that at the foundation of the defense lies the application for the policy, and the defendant has no standing to establish either of the facts which it relies upon to relieve itself from the liability of this insurance, unless the application is before the court. The application was, by the policy, made a part of the contract, but a copy of it was not attached to the policy of insurance, but it was left to be produced by the defendant upon the trial if it saw fit to do so, upon notice being given to it. As the application was not in the possession of the plaintiff, the court did not require its production by the plaintiff while it had the case, but it was produced and offered in evidence by the defendant. It appeared that the application covered the first two pages of a sheet of four pages of paper. The part
These facts having appeared, when the portion of the application produced by the defendant was offered in evidence, an objection
It appeared in the case that the person who took down the appli
This application was dated on the 15th day of November, 1895. The plaintiff offered in evidence a letter dated November 21, 1895, signed by the second vice-president of the company, brought to Ostermoor by the agent who took his application, declining to issue a jiolicy upon that apjilieation at that time, and he proposed to show, in connection with that letter, that the agent avIio brought it told Ostermoor the terms upon which the policy would be issued. Taken in connection with the declination to issue a policy upon the application as it stood, and with the fact that after the application had been put into the hands of the insurance company it was altered by somebody connected with the company, we think this evidence was competent as tending to show precisely what was the nature of the application upon the faith of which the policy was issued, and it comes within the principles laid down in the cases just cited which authorize parol evidence of statements made by the applicant to the agents of the company engaged in procuring the policy upon the faith of which the contract was made.
It appeared that the contract was not delivered to Ostermoor, but
It is claimed by the defendant that the policy was void upon its face as a wager policy, because it says that the evidence established that the policy was made for the benefit of Ames, the agreement between Ames and Ostermoor being that each should insure his life for the benefit of the other. It is sufficient upon that point to say that the policy was made payable to the legal representatives of Ostermoor, and it was delivered to Ostermoor. If the delivery took effect, it clearly then became a valid contract; and it is well settled in this State that, when a policy of life insurance has been issued which is valid in its inception, an assignee of that policy may maintain an action upon it.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson and Ingraham, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.