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Kelly v. Prudential Insurance

119 N.Y.S. 154 Court N.Y. App. Term Decision date 1909-11-12 English

Delivered by SEABURY, J.

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p. 154
KELLY v. PRUDENTIAL INS. CO. OF AMERICA.
(Supreme Court, Appellate Term.
November 12, 1909.)

Headnote

Insurance (§ 622*)—Limitation of Actions—Infants.
An action on a policy insuring the life of an infant, and providing that no suit on the policy shall be maintainable unless brought within six months next after the death of insured, not brought by those interested in the policy until more than eight years after the death of insured, is barred.
[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1544-1550; Dec. Dig. § 622.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
p. 155
Action by Mary Kelly, as administratrix, etc., against the Prudential Insurance Company of America, on an insurance policy. From a judgment for plaintiff, defendant appeals.
Reversed, and complaint dismissed.
Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.
William O. Campbell, for appellant.
Abraham B. Schleimer, for respondent.

On August 8, 1898, the defendant issued a policy of insurance upon the life of one James Kelly, an infant, and a second policy on October 30, 1899. The assured died June 30, 1900. On the 18th day of February, 1909, the plaintiff was appointed administratrix of the estate, goods, and chattels of James Kelly, deceased. The present action was instituted 8 years 10 months after the death of the insured. Both of the policies contained the following provision:

“No suit on this policy shall be maintainable against the company unless brought within six months next after-the death of the insured.”

The time prescribed in this clause was a contractual limitation upon the right to institute the action under the policy, and those interested in the policy made no reasonable efforts to see that the covenants of the policy were kept, nor did they within a reasonable time take any action which would enable them to comply with the conditions of the policy. It follows that the present action is barred, and cannot now be maintained.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.