122 Misc. 159 | N.Y. Sup. Ct. | 1923
Motion to set aside a verdict for plaintiff and for a new trial in an action on a certificate of accident insurance to recover the benefits thereof by reason of the death of the assured. The certificate provides for a notice in writing of every death for which claim may be made to be given within twenty days after which such death occurs with full particulars of the accident and its results. The certificate further provides: “ Failure to give such written notice within said twenty days shall invalidate all claims under this contract which may be made on account of * * * such death unless the notices herein specified shall be shown not to have been reasonably possible.” The death of the assured occurred in March, 1921. In ignorance of the existence of the certificate, as the jury found, plaintiff, the beneficiary, did not give notice of the death until July, 1921, within twenty days of the existence of the policy as disclosed to her. The important question here is whether the notice was timely or not. It has been held that where notice of an accident was required by a policy of insurance to be given within a certain time and such notice was not given within the time required, the failure to give timely notice was not excused because of the incapacity so to do of the person required to give the notice. Whiteside v. North American Accident Ins. Co., 200 N. Y. 320. It has also been decided that an insurer was not liable on an accident insurance policy for the death of the insured where the policy required notice to be given within ten days from the date of death and the death was not discovered until four years after it occurred, after which notice was given within ten days. Hanna v. Commercial Travelers Mut. Accident Assn., 204 App. Div. 258. In that case .two of the justices of the Appellate Division in the first department dissented. It is interesting to note, although not necessarily of importance, as we have been admonished, that
Motion to set aside the verdict and for a new trial denied.
Ordered accordingly.