Kelly v. Catholic Relief & Beneficiary Ass'n

Majority

p. 637

Catherine Kelly, Appellant, v. Catholic Relief and Beneficiary Association, Respondent.

Headnote

Kelly v. Catholic Relief & Beneficiary Assn., 166 App. Div. 964 , affirmed.

(Argued February 6, 1917;

decided February 27, 1917.)

Appeal from a judgment, entered October 13, 1915, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling plaintiff’s exceptions ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment for the defendant upon the verdict directed by the trial court in an action to recover the amount of a benefit certificate. The defense as set forth in the answer and developed in the trial was

p. 638

that there had been a misstatement by the insured in his application for insurance, and it was upon the holding by the court that these misstatements in the answer were warranties as matter of law and not representations, that the motion for a nonsuit was granted.

James M. E. O’Grady for appellant.

Frank M. Leary for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Collin, Cardozo, Pound, McLaughlin and Andrews, JJ.