17 A.D. 13 | N.Y. App. Div. | 1897
This action was begun September 18, 1895, by Maggie J. Murray, as plaintiff, to recover the amount alleged to be due her as the beneficiary in a policy of insurance issued by the defendant August 1, 1894, upon the life of Catherine Curtin, her aunt, for $1,000. November 21, 1895, Maggie J. Murray assigned the cause of action to Bertha Magner, who, by an order granted December 23, 1895, was substituted as the plaintiff herein in the place and stead of 'Maggie J. Murray.
The action was defended on five grounds : (1) That the age of the insured was understated in the application; (2) that it was untruly stated in the application that she was not insured in any other company ; (3) that the beneficiary in the policy was changed without the
Whether the age of the insured was understated in the application is uncertain. The insured certainly made contradictory statements in respect to it. It was untruly stated in the application that she was not insured in' any other company, for she was at the time insured in the Industrial Benefit Association of Syracuse, Hew York, for $2;000, which policy was existing at the time of her death. There was no evidence that tended to support the third defense, that the beneficiary in the policy was changed without the direction of the insured.
In respect to the first and second defenses the defendant, prior to April 11, 1895, knew that the insured had misstated her age in the application to the defendant or in the application to the Industrial Benefit Association of Syracuse, and on that date the defendant - received seven dollars and thirty-three cents from the beneficiary named in the policy, and gave the following receipt:
“ Buffalo, H. Y.
“ Mutual Life Association of the City of Brooklyn has received from the owner of its policy Ho. 2,013, $7.33, being bi-monthly premium Ho. 19, due May 1st, 1895, upon condition that it shall not reinstate said policy if lapsed by reason or* non-payment of aiiy previous premium at maturity, if still remaining unpaid.
“A. G. WARREH,
“ E. E. Palmee, “ President.
. “ Secretary.
“ This receipt, to be valid for any purpose, must be countersigned by the collector to whom the amount is paid.
“ Countersigned at Buffalo, H. Y., this 11th day of April, 1895. ---, Oollector.
“ E. E. Palmee,
“ Secretary.”
In respect to the fourth defense, section 2 of article 4 of the defendant’s by-laws provides: “No action shall be brought or maintained against this association upon any certificate of membership or policy issued by it, unless the same shall be commenced within the period of six months next succeeding the date of the death of the person upon whose life such certificate shall have been issued.”
The policy provided that “ all benefits and claims thereunder shall be payable at such office (the New York office)/ and become due and payable within ninety days next after the acceptance by said association of proofs satisfactory to it, by affidavits showing the death of the insured, and such other facts as shall be required by the association, and made out on blank forms adopted and to be furnished by it for such purpose, and shall accrue and be paid in conformity with the by-laws' and the rules and regulations of this association, and these conditions and provisions.”
August 6, 1895, the defendant’s secretary wrote the beneficiary that her claim would be considered August 21, 1895, and, September 11,1895, the secretary wrote her that her claim had been rejected by the defendant’s executive committee, and seven days thereafter this action was begun, which was four days after the expiration of six months after the death of Catherine Curtin.
The provisions of the by-laws and of the policy in respect to bringing actions must be construed together, and the by-law which provides that no action shall be maintained unless begun within six months after the death of the insured should be held to be void, as unreasonable, when attempted to be applied to a case like the present, in which the defendant delayed its final determination as to whether the claim would or would not be paid until three days before the expiration of the six months. The insured died March 14, 1895, and the notification that the claim would not be paid was dated September eleventh, following.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.
Sic.