Mecca v. Metropolitan Life Insurance — 266 A.D. 910

Majority

p. 910

First Department,

July, 1943.

(July 2, 1943.)

Dominick J. Mecca, Jr., an Infant, by Marguerite P. Mecca, His Guardian ad Litem, Respondent, v. Metropolitan Life Insurance Company, Appellant.

Defendant’s affidavit showed that on the date of the insured’s death the policy sued upon had lapsed for nonpayment of premiums. Affidavits submitted by plaintiff in opposition to defendant’s motion for summary judgment failed to set forth any facts controverting this claim of defendant. Under the circumstances defendant’s motion for summary judgment should have been granted.

The order should be reversed, with twenty dollars costs and disbursements, and the motion for summary judgment dismissing the complaint granted. Present — Martin, P. J., Townley, Untermyer, Cohn and Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and the motion granted.