254 A.D. 698 | N.Y. App. Div. | 1938
Action by a beneficiary upon a policy of life insurance issued by the defendant. Judgment of the City Court of Yonkers dismissing the complaint unanimously affirmed, with costs. Plaintiff did not establish a prima facie case. There were material issues of fact raised by the answer interposed to the complaint. The twelfth paragraph, denying the statutory short form allegation of due performance by the plaintiff and the insured, required that the plaintiff put in evidence the policy of insurance and establish compliance with its conditions. An unqualified admission of the thud paragraph of the complaint merely admitted defendant was required to make a payment under the policy issued in consideration “ of the premiums therein named, in the manner and amounts and at the times also therein named.” The fact of such payments had to be established under the denial of the twelfth paragraph of the complaint, and what those payments were could only be evidenced by putting in evidence the policy of insurance. Order granting motion to resettle case on appeal affirmed, without costs. Order vacating previous ex parte order directing that plaintiff’s exceptions be heard in the first instance in the Appellate Division, affirmed, with ten dollars costs and disbursements. (4 Carmody’s New York Practice, § 1425, and cases cited; Civil Practice Rule 220.) Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, J J.
