268 A.D. 1004 | N.Y. App. Div. | 1944
Action to recover under an industrial life insurance policy after death of the insured. Order of the Appellate Term affirming a judgment of the Municipal Court of the City of New York, borough of Brooklyn, which was entered on a jury verdict in favor of plaintiff, reversed on the law, judgment of the Municipal Court vacated, and a new trial ordered in the interests of justice, costs in all courts to abide the event. The avoidance clause in the policy is permitted by and drawn in the language of paragraph (b) of subdivision 3 of section 163 of the Insurance Law (L. 1939, ch. 882). There is no evidence that the defendant waived its right to void the policy, and the issue of waiver should not have been submitted to the jury. The insurance company did not waive its right to void the policy merely because it issued the policy after it had knowledge that the insured had consulted a doctor for' a condition that may not have been serious. Under the evidence, the issues for the jury