Bravoy v. Metropolitan Life Insurance

249 A.D. 562, 293 N.Y.S. 281, 1937 N.Y. App. Div. LEXIS 9650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1937
• Status: Published

Opinion

Per Curiam.

The second defense to the first cause of action, after setting forth the facility of payment clause, alleges a payment to one within the class of payees mentioned in that clause, of “ the sum of $36 in full satisfaction of his claim under said policy of insurance,” and also alleges a receipt and a release. The defense in its present form, therefore, in effect, alleges a settlement of a claim made under an industrial policy with a relative for a sum less than the face value of the policy, or for a sum less than its proceeds according to its terms in case of condition broken; and, under the authority of McCarthy v. Prudential Insurance Co. (252 N. Y. 459), such payment by way of settlement, unless made to the administra for, is insufficient as a defense. Accordingly the motion to strike out the second defense should have been granted, with leave to plead over.

The third defense to the first cause of action pleads payment of the proceeds of the policy according to its terms in case of a breach of condition without suggesting a compromise or an alleged adjustment, and is, therefore, sufficient, irrespective of any claimed “ release ” which may be regarded as surplusage.

The order appealed from should be modified in accordance with this opinion, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant to abide the event.

Present — Martin, P. J., O’Malley, Townley, Dore and Cohn, JJ.

Order unanimously modified in accordance with opinion, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant to abide the event. Settle order on notice.