127 Misc. 674 | N.Y. Sup. Ct. | 1926
The action is brought by the beneficiary under a policy of insurance written by the defendant upon the life of plaintiff’s husband. The answer sets up fraud on the part of the insured
Section 101 of the Insurance Law (added by Laws of 1909, chap. 301, as amd. by Laws of 1921, chap. 407)
The 1921 amendment added the words written in italics in the foregoing quotation from the law. In the clause in the present policy the words “ during the lifetime of the insured ” are omitted. The question for determination is whether or not the omission of these words in the policy changes what would otherwise be the plain meaning of the clause. By the provision for standard clauses in life insurance policies the Legislature intended to safeguard the rights of the insured as well as to protect the insuring company. The policy here involved was the contract between the parties, and the defendant company saw fit to depart from the form prescribed by the Legislature. If the construction that I place upon the clause in the contract be correct, it inures to the benefit of the insured, and necessarily was an inducement to the insured to make the contract. If there be any ambiguity, that construction is to be adopted which is most favorable to the insured (Mutual L. I. Co. v. Hurni Packing Co., 263 U. S. 167; S. C., with note, 31 A. L. B,. 102-118), though that would not be so if the form prescribed by statute had been followed. (Ramsey v. Old Colony L. I. Co., 297 Ill. 592; Mick v. Corp. of Royal Exchange, 87 N. J. L. 628; Nelson v. Traders’ Ins. Co., 181 N. Y. 472.)
The words “ in force,” both in the standard provision and in the present policy, are used in the ordinary sense that every contract or instrument is in force between the parties until abrogated or rescinded either voluntarily or in some judicial proceeding. I have not overlooked the reasoning of McDonnell v. Mutual L. I. Co. (131 App. Div. 643) and McCormack v. Security Mutual L. I. Co.
Since amended by Laws of 1922, chap. 275; Laws of 1923, chap. 28.— [Rep.