Romano v. Metropolitan Life Insurance

246 A.D. 630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Action by beneficiary on policy of life insurance. The defendant’s answer set up defenses of fraud and misrepresentation in the insured’s application. This answer was served more than two years after the date of issue of the policy; and the policy had by its terms and by statute become incontestable except for non-payment of premiums. (Killian v. Metropolitan Life Ins. Co., 251 N. Y. 44; Wolpin v. Prudential Life Insurance Co., 223 App. Div. 339.) The stipulations giving the parties additional time to serve their pleadings did not stop the running of the limitation; and that given by plaintiff’s attorney on February 19, 1935, after the policy became incontestable, could not affect rights of the plaintiff that had become fixed and vested. It created no estoppel, for the defendant had the application and proofs of death and was fully informed of its rights; and it was not deceived or misled or caused to change its position by any act of the plaintiff directed to that end. Order denying plaintiff’s motion to strike out the answer and for summary judgment reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.