135 Misc. 594 | N.Y. Sup. Ct. | 1929
The defendant moves to dismiss the complaint upon the ground that the action was not timely instituted. The suit is brought by plaintiff, a life insurance company, against the beneficiary named in two policies issued by it to cancel and rescind the same by reason of alleged misrepresentations made by the assured. The policies bear the date July 29, 1927, and the assured died on January 4, 1928. Each policy contained a provision that " this policy shall be incontestable after two years from its date of issue except for non-payment of premium.” The summons was not served on the defendant until September 18, 1929, but on July 27, 1929, a copy thereof was delivered to the sheriff of New York county.
The question presented is whether the plaintiff is entitled to the benefits of section 17 of the Civil Practice Act, which provides that an attempt to commence an action is equivalent to the actual commencement “ within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff * * * of the county, in which that defendant * * * resides or last resided,” provided that such delivery of the summons be followed within sixty days after the expiration of the time limited for the commencement of the action by service of the summons upon the defendant.
The defendant argues that the provisions of section 17 of the Civil Practice Act do not apply to limitations created by private contract as distinguished from those prescribed by law. In support of this contention, reference is made to the language of section 10 of the Civil Practice Act to the effect that the provisions of article 2 of the act —■ dealing with “ Limitations of Time ”— constitute "the only rules of limitation applicable to a civil action or special proceeding ” except where a different limitation is specially prescribed by law “ or a shorter limitation is prescribed by the written contract of the parties.” It is definitely settled, however, that section 10 does not exclude contracts fixing special limitations from the scope of the general provisions of article 2, relating to such matters as attempts to commence actions and suspension of the Statute of Limitations during periods of disability. In Hamilton v. Royal Ins. Co. (156 N. Y. 327) the court held that section 399 of the Code of Civil Procedure — the predecessor of section 17 of the Civil Practice Act — was applicable in the case of limitations fixed by private contracts as well as where the limitations were statutory. The court discussed the provisions of section 414 of the Code of Civil Procedure — the predecessor of section 10 of the Civil Practice Act — and declared that they were not intended
Nor is the basis of the decision in the Hamilton case the fact that the period of limitation contained in the policy there involved had been inserted in obedience to statute. The court’s opinion, at pages 333 to 336, indicates that it took the view that the provisions of the predecessor of section 17 of the Civil Practice Act applied equally to cases where the limitation was fixed by statute and those where it was the result of a private contract. Subsequent authorities have cited the Hamilton case for the proposition that no distinction is to be drawn in applying the general provisions regarding attempts to commence actions, suspension of the Statute of Limitations during periods of disability, etc., between limitations created by statute and those imposed by private contract. (Comey v. United Surety Co., 217 N. Y. 268, 272, 273; Matter of Selwyn Realty Corporation, 184 App. Div. 355; affd., 224 N. Y. 559.)
In the Hamilton case the action was commenced by the assured on a policy which provided that no suit thereon could be maintained unless commenced within twelve months next after the fire. The defendant urges that such a provision is not at all similar or analogous to the incontestability clause contained in the policies which form the basis of the present action, pointing out that one refers to suits in affirmance of the policy and the other to litigation
It is quite true, as pointed out by the defendant, that the Court of Appeals in the Hamilton case referred to the fact that the provision of the policy fixing a period of limitation within which to commence action had been inserted in compliance with a statute prescribing the terms and contents of the policy. This, however, furnished at most cumulative support for the court’s decision. But even if it be assumed that the Hamilton case is to be confined as an authority to a situation where the limitations in a contract have been inserted in obedience to a statutory provision, the defendant’s position is no better, since the incontestability clause falls within that very category. The mere circumstance that the incontestability clauses in the policies herein sought to be avoided do ■not follow the exact language of the amendment to the statute (Laws of 1921, chap. 407) does not alter the fact that the provision giving the insurance company only two years from the issuance of the policy within which to contest it, is the result of mandatory legislation. Indeed, the incontestability clause in the present policies is even more favorable to the assured than the amended statute requires. It provides that the policy shall be incontestable after two years from its date of issue, whereas the statutory provision is that it shall be incontestable after it has been in force for two years during the lifetime of the assured.
In concluding, I might observe that I am not unmindful of the recent decision of the Court of Appeals in Jensen v. Metropolitan Life Ins. Co. (251 N. Y. 336) to which my attention has not been drawn by counsel. In that case the court held that the insurer’s right to contest was suspended during the period elapsing between the death of the assured and the issuance of letters testamentary to the personal representative. Judge Hubbs, writing for the Court of Appeals, declared: “ Such contest must be commenced, however, within two years, counting the time from the issuing of the policy to the death of the insured, and from the granting of letters to the commencement of the contest.” No reference was made in the opinion to section 21 of the Civil Practice Act, which
For the reasons indicated, it seems to me that the Hamilton case is decisive of the present application. Motion denied.