Gainor v. St. Lawrence Life Ass'n

21 Misc. 27 | N.Y. App. Term. | 1897

Daly, P. J.

The plaintiff was ill for about four weeks from-malaria and sought to recover the weekly payments specified in the policy for “ total disability (confinement to the bed) from sickness.” His claim is opposed upon the following grounds, based upon provisions of the policy: (1.) That the “total disability insured against must be evidenced by actual confinement to bed ”; and the policy also provides “ that seven full days’ confinement to bed shall constitute a week’s sickness .* * * and no indemnity will be paid for a less period; ” and the conceded fact is that the plaintiff, although suffering from malaria during the period sued for, was confined to bed only one day. (2.) That the right to payments begins according to the policy only after mailing written notice of illness, and such notice was not given until February 15 th., (3.) That the policy also provides that no weekly benefit is payable, if such written notice be not given within ten days from the beginning of the sickness; and in this case it was not given within that time. (4.) That, if entitled to anything, it is only from a February 16th, less than a week, and the policy, provides that “ only .half the stated weekly indemnity will be allowed for the first week.” (5.) That the' plaintiff was delinquent in paying . dues, "those accruing February 1st not being paid until February 4th, and the policy insures only in case of membership without delinquency for three months prior to sickness. (6) That the action is premature, having been brought within two weeks after the period of illness claimed for, while the policy provides that legal proceedings for recovery under it shall not be brought until four months after filing final proofs at the home office; as required by the association.

These objections seem to be fatal to p' aintiff’s recovery upon his appreciated the numerous-safeguards and protections constituted by the policy for the benefit, -not of the insured hut the company, end which make any.payments by .it, in most cases, purely optional.

Judgment reversed and new trial ordered, without costs to either party.

Bischoff and McAdam, JJ., concur.

Judgment reversed and new trial ordered, without costs to either party.