Goldstein v. Massachusetts Accident Co.

246 A.D. 823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1936
• Status: Published

Opinion

In an action to recover on a policy of disability insurance the defendant set up in its answer the defenses of false and fraudulent representations made in the application in respect to the age of the insured, his consultation with physicians and treatments by them and as to his state of health at the time the application was made — all these alleged false representations having been made with intent to deceive and that the policy thereby became barred. The defendant moved for summary judgment, relying upon certain documentary evidence. The plaintiff, in answer to this documentary proof, gave explanation and stated that the facts contained therein were not correct, and that the facts stated in the application were literally true. A portion of this documentary evidence apparently would not be admissible on the trial unless there were express waiver at that time or testimony on the part of the plaintiff constituting waiver. Order denying motion for summary judgment affirmed, with ten dollars costs and disbursements. No opinion. Young, Carswell, Davis, Adel and Taylor, JJ., concur.