Barlow v. Prudential Insurance Co. of America

Appellate Terms of the Supreme Court of New York

Barlow v. Prudential Insurance Co. of America

17 Misc. 2d 864, 187 N.Y.S.2d 231, 1959 N.Y. Misc. LEXIS 3999

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 2, 1959

StatusPublished

This text of 17 Misc. 2d 864 (Barlow v. Prudential Insurance Co. of America) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barlow v. Prudential Insurance Co. of America, 17 Misc. 2d 864, 187 N.Y.S.2d 231, 1959 N.Y. Misc. LEXIS 3999 (N.Y. Ct. App. 1959).

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Opinion

Per Curiam.

The court below was in error in charging the jury that section 341 of the Civil Practice Act placed the burden on the defendant insurance company to come forward with evidence to rebut the presumption of death because of the insured’s seven years’ absence. The “ due proof ” required as a condition precedent to an insured’s liability upon a policy of life insurance is not met by relying upon the presumption and by casting upon the insurer the burden of affirmatively proving that the insured was alive within the period of seven years ’ disappearance. While death in an action on an insurance policy may be established by proof of disappearance under circumstances that indicate death rather than concealment, the burden of proof in such situation is at all times upon the plaintiff. Such an action is not one of those ‘1 certain cases ’ ’ coming within the statute.

The verdict, moreover, was clearly against the weight of the evidence. The presumption could not arise, since the facts of the insured’s disappearance could not create “in reasonable [865]*865minds conflicting inferences”. (Stevens v. Metropolitan Life Ins. Co., 151 Misc. 676, affd. 241 App. Div. 857, affd. 266 N. Y. 485.)

The order and judgment appealed from should be reversed, with $30 costs, and the complaint dismissed, with costs, without prejudice, however, to the bringing of another action upon new proof.

Concur — Hecht, J. P., Steuer and Tilzer, JJ.

Order and judgment reversed, etc.

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Per Curiam.

The court below was in error in charging the jury that section 341 of the Civil Practice Act placed the burden on the defendant insurance company to come forward with evidence to rebut the presumption of death because of the insured’s seven years’ absence. The “ due proof ” required as a condition precedent to an insured’s liability upon a policy of life insurance is not met by relying upon the presumption and by casting upon the insurer the burden of affirmatively proving that the insured was alive within the period of seven years ’ disappearance. While death in an action on an insurance policy may be established by proof of disappearance under circumstances that indicate death rather than concealment, the burden of proof in such situation is at all times upon the plaintiff. Such an action is not one of those ‘1 certain cases ’ ’ coming within the statute.

The verdict, moreover, was clearly against the weight of the evidence. The presumption could not arise, since the facts of the insured’s disappearance could not create “in reasonable [865]*865minds conflicting inferences”. (Stevens v. Metropolitan Life Ins. Co., 151 Misc. 676, affd. 241 App. Div. 857, affd. 266 N. Y. 485.)

The order and judgment appealed from should be reversed, with $30 costs, and the complaint dismissed, with costs, without prejudice, however, to the bringing of another action upon new proof.

Concur — Hecht, J. P., Steuer and Tilzer, JJ.

Order and judgment reversed, etc.

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17 Misc. 2d 864, 187 N.Y.S.2d 231, 1959 N.Y. Misc. LEXIS 3999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barlow-v-prudential-insurance-co-of-america-nyappterm-1959.

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