Marshall v. Prudential Insurance of America

255 A.D. 883, 7 N.Y.S.2d 971, 1938 N.Y. App. Div. LEXIS 5754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1938
• Status: Published

Opinion

In an action to recover upon thirteen policies of life insurance which, defendant-respondent claims, lapsed and were forfeited for nonpayment of premiums, judgment for defendant-respondent, entered upon a directed verdict, and order denying plaintiff’s motion for a new trial, reversed on the facts and a new trial granted, with costs to appellants to abide the event. At the close of the case both plaintiffs and defendant-respondent moved for a directed verdict. Instead of deciding the motions, the court, without objection, reserved decision on the motions and submitted five special questions to the jury. The first four related to the insured’s residence. The fifth was whether defendant-respondent, through one Rose, had informed the insured in September, 1931, that “ all of the policies had been lapsed by the defendant.” The jury found the insured had been a resident of New York and that Rose did not tell the insured the policies had lapsed. Subsequently the court denied plaintiffs’ motion and granted defendant-respondent’s motion for a directed verdict. Both sides having moved for a directed verdict, it was for the court to determine all questions of law and fact, but both sides acquiesced in the submission of the special questions to the jury. In our opinion the verdict on the fifth question was against the weight of the evidence. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.