Allick v. Columbian Protective Ass'n

184 Misc. 525, 53 N.Y.S.2d 507, 1945 N.Y. Misc. LEXIS 1537

Opinions

Memorandum Per Curiam.

Defendant’s proof showed the applicant suffered an undisclosed substantial illness after the date of the application and before delivery of the policy and that such illness later caused her death. As the application attached to and made part of the insurance contract provided the policy would not be in force in such a contingency, that condition precedent under the circumstances asserted by defendant was not complied with. The policy, not being in force, could receive no vitality from the incontestability clause. We think the justice below in ruling that defendant was entitled to a trial of the issue presented correctly denied plaintiff’s motion for summary judgment.

The order should be affirmed, with $10 costs.