299 N.Y. 428 | NY | 1949
On March 24, 1945, a policy of life insurance was issued in this State to one Schmidt. In order to conform to the mandate of paragraph (b) of subdivision 1 of section 155 of the Insurance Law, the issuing insurance company included in the policy, verbatim, the statutory provision regarding incontestability, viz., "* * * This Policy shall be incontestable after it has been in force during the lifetime of the Insured for a period of two years from its date of issue, except for nonpayment of premiums * * *." (Emphasis supplied.)
On March 24, 1947, the insurance company commenced this action for rescission of the policy, alleging that the application therefor had contained certain material misrepresentations. The action was commenced by delivery of the summons to the Sheriff of the City of New York, New York County, wherein Schmidt resided.
In addition to a general denial, the answer of the defendant insured contained an affirmative defense that the action was not *431 commenced within the period specified in the policy and, upon that ground, defendant moved for summary judgment. Special Term denied the motion and, on appeal, the Appellate Division affirmed unanimously. Defendant now appeals to this court from such nonfinal order of affirmance by permission of the Appellate Division which has certified to us the question whether the action was "timely commenced under the terms of the said policy".
Decision herein turns upon whether we begin computation of the two-year period from March 24, or from March 25, 1945. If the date of issue, March 24, 1945, be excluded from the two-year period, the action was commenced on the last day of such period, March 24, 1947, and within the time limited. If the date of issue be included in the two-year period, the last day of such period was March 23, 1947, and the action was commenced one day too late, unless, as argued by the insurance company, the fact that March 23, 1947, fell on a Sunday extended such period an extra day.
The insurance company contends that the case is controlled by section
We agree that the above-quoted portion of section 20 is determinative of the instant case. The General Construction Law is expressly made "applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter." (General Construction Law, §
As indicated above, the policy provision regarding incontestability was inserted in the policy pursuant to paragraph (b) of *432
subdivision 1 of section 155 of the Insurance Law, which provides: "No policy of life insurance * * * shall be delivered or issued for delivery in this state unless it contains in substance the following provision or provisions which in the opinion of the superintendent are more favorable to policyholders: * * * (b) A provision that the policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years from its date of issue, except for nonpayment of premiums * * *." Thus the language of the policy provision which was copied from the statute, is statutory language, and as such, is subject to the General Construction Law, since there is nothing in the general object or context of the Insurance Law provison to indicate that a different meaning or application was intended from that required to be given by section
Accordingly, we hold that the date of issue of the policy, March 24, 1945, must be excluded from the computation of the two-year period, and that the instant action for rescission, commenced on March 24, 1947, is timely. This view of the case makes it unnecessary to determine the insurance company's alternative contention that even if the last day of the two-year period were March 23, 1947, such period should be extended an extra day because March 23, 1947, fell upon a Sunday.
The order appealed from should be affirmed, with costs, and the question certified answered in the affirmative.
LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE, FULD and BROMLEY, JJ., concur.
Order affirmed, etc.