Liesny v. Metropolitan Life Insurance

Appellate Division of the Supreme Court of New York

Liesny v. Metropolitan Life Insurance

147 A.D. 253, 131 N.Y.S. 1087, 1911 N.Y. App. Div. LEXIS 2870

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1911

StatusPublished

Cited by4 cases

This text of 147 A.D. 253 (Liesny v. Metropolitan Life Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Liesny v. Metropolitan Life Insurance, 147 A.D. 253, 131 N.Y.S. 1087, 1911 N.Y. App. Div. LEXIS 2870 (N.Y. Ct. App. 1911).

Pincite

Opinion

Robson, J.:

Plaintiff is the beneficiary named in a policy of insurance upon the life of her husband, Antonio Liesny, for the sum of $500, to be paid to her upon the death of the.insured.

The material question litigated at the trial was whether this policy had been by the defendant declared forfeited or lapsed on failure to pay the premium payable thereon September 30, 1908, following a notice mailed and addressed by the defendant to the insured, pursuant to the provisions of section 92 of the Insurance Law. (See Gen. Laws, chap. 38 [Laws of 1892, chap: 690], § 92, as amd. by Laws of 1906, chap. 326; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], § 92.)

In disposing of this appeal, it may be assumed, without directly deciding, that the answer,, as amended by permission of the trial court, sufficiently pleaded this defense.

To establish this defense it was necessary for the defendant to prove not only that the defendant had mailed and addressed to the insured, as the statute requires, the prescribed notice but also failure to pay the premium referred to in the notice. (Fischer v. Metropolitan Life Ins. Co., 37 App. Div. 575, 580; affd., 167 N. Y. 178.) As was said in the case cited: “ It was just as necessary to prove one of those facts as the other, because both of them together were required to constitute a forfeiture.” The defense being an affirmative one, the burden of establishing it by proof óf the facts, upon which it depends, rested upon the defendant. Plaintiff’s counsel requested the court to charge: “ That the non-payment of a premium and the forfeiture of the policy are affirmative defenses that must be established by the defendant by a preponderance of evidence.” The request was denied, aüd exception was duly [255]*255taken. For the reasons above stated we think the plaintiff Was entitled to have the jury instructed as requested. The evidence as to the payment of the premium in question was conflicting and it cannot be affirmed that the plaintiff’s rights may not have been prejudiced by the refusal to charge as requested.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Free access — add to your briefcase to read the full text and ask questions with AI

Robson, J.:

Plaintiff is the beneficiary named in a policy of insurance upon the life of her husband, Antonio Liesny, for the sum of $500, to be paid to her upon the death of the.insured.

The material question litigated at the trial was whether this policy had been by the defendant declared forfeited or lapsed on failure to pay the premium payable thereon September 30, 1908, following a notice mailed and addressed by the defendant to the insured, pursuant to the provisions of section 92 of the Insurance Law. (See Gen. Laws, chap. 38 [Laws of 1892, chap: 690], § 92, as amd. by Laws of 1906, chap. 326; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], § 92.)

In disposing of this appeal, it may be assumed, without directly deciding, that the answer,, as amended by permission of the trial court, sufficiently pleaded this defense.

To establish this defense it was necessary for the defendant to prove not only that the defendant had mailed and addressed to the insured, as the statute requires, the prescribed notice but also failure to pay the premium referred to in the notice. (Fischer v. Metropolitan Life Ins. Co., 37 App. Div. 575, 580; affd., 167 N. Y. 178.) As was said in the case cited: “ It was just as necessary to prove one of those facts as the other, because both of them together were required to constitute a forfeiture.” The defense being an affirmative one, the burden of establishing it by proof óf the facts, upon which it depends, rested upon the defendant. Plaintiff’s counsel requested the court to charge: “ That the non-payment of a premium and the forfeiture of the policy are affirmative defenses that must be established by the defendant by a preponderance of evidence.” The request was denied, aüd exception was duly [255]*255taken. For the reasons above stated we think the plaintiff Was entitled to have the jury instructed as requested. The evidence as to the payment of the premium in question was conflicting and it cannot be affirmed that the plaintiff’s rights may not have been prejudiced by the refusal to charge as requested.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Cite This Page — Counsel Stack

Bluebook (online)

147 A.D. 253, 131 N.Y.S. 1087, 1911 N.Y. App. Div. LEXIS 2870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liesny-v-metropolitan-life-insurance-nyappdiv-1911.

Opinion

Related

Cite This Page — Counsel Stack