DeCesare v. John Hancock Mutual Life Insurance

256 A.D. 1036

Opinion

Judgment and order affirmed, with costs. Memorandum: The decision is on the authority of Lampke v. Metropolitan Life Insurance Co. (279 N. Y. 157) decided November 29, 1938. We construe the word “ void ” as meaning “ void at the election of the insurer ” or, in other words, “ voidable ” (Blinn v. Schwarz, 177 N. Y. 252; Huntley v. Perry, 38 Barb. 569; Richards on Insurance [4th ed.], 171), and, therefore, not a condition precedent. We take into consideration the fact that the policy was prepared by the defendant, that the defendant did not rest on a general denial but affirmatively pleaded breach of the condition which was controverted by avoidance in the form of a waiver or estoppel, and that while proof of the waiver was received out of order it was a mere matter of procedure which the trial court had a right to vary. The burden of proving the waiver was on the plaintiff and the court so charged. All concur. (The judgment is for plaintiff in an action under life insurance policies. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.