Heath v. Commercial Travelers Mutual Accident Ass'n of America

255 A.D. 990, 8 N.Y.S.2d 504, 1938 N.Y. App. Div. LEXIS 6192

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1938
• Status: Published

Opinion

Appeal from a judgment in favor of plaintiff in the sum of $5,967.99 and from an order granting, on reargument, plaintiff’s motion for summary judgment and denying defendant’s motion for summary judgment. Plaintiff is the assignee of the beneficiary of a benefit certificate issued by defendant mutual co-operative assessment association insuring, among other things, against loss of life by accidental means. Assured failed to pay an assessment levied April 1, 1935, payable on or before May 16, 1935, thus lapsing assured’s membership. The certificate provided for reinstatement upon application in writing, payment of the amount of the assessment and approval of a majority of the board of directors of the association. For this last named condition had been substituted the approval of an employee. On May 23, 1935, defendant notified the assured of his lapsed membership. On Saturday, May 25, 1935, assured sent to defendant by mail an application and a check for the amount of the assessment. This was received in regular course by defendant on Monday, May twenty-seventh, and a receipt mailed that day. But, on May twenty-sixth and before receipt of the application and check, assured was killed in an accident. The cheek was not paid because of assured’s death. Plaintiff applied for summary judgment, the motion was granted and judgment entered thereon. Defendant’s motion for summary judgment was denied. Order and judgment reversed on the law, with ten dollars costs and disbursements, plaintiff’s motion for summary judgment denied, and defendant’s motion for summary judgment granted. The assured died before the receipt by defendant of the application for reinstatement and the cheek for the amount of the assessment and before action thereon by defendant as provided in the policy modified by the practice of defendant. There was no reinstatement of the assured’s membership. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.