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Murphy v. Colonial Life Ins. Co. of America

147 N.Y.S. 565 Court N.Y. App. Div. Decision date 1914-05-15 Docket No. 5764 English

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p. 565
MURPHY v. COLONIAL LIFE INS. CO. OF AMERICA.
(No. 5764.)
(Supreme Court, Appellate Division, First Department.
May 15, 1914.)

Headnote

Insurance (§ 650*)—Life Insurance—Breach of Conditions—Statute.
Under Insurance Law (Consol. Laws, c. 28) § 58, providing that every life policy shall contain the entire contract, statements made by insured in the application cannot be considered, where they were not made a part of the policy; the provision that all statements made by insured should be deemed representations, and not warranties, relating only to those which were so incorporated.
[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1671, 1672; Dec. Dig. § 650.*]
Appeal from Appellate Term, First Department.
Action by Mary Murphy against the Colonial Life Insurance Company of America. From a determination of the Appellate Term ( 83 Misc. Rep. 475 , 145 N. Y. Supp. 196 ), affirming a judgment of the Municipal Court for plaintiff, defendant appeals.
Modified and affirmed.
Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and HOTCHKISS, JJ.
John F. Carew, of Brooklyn, for appellant.
Thomas A. McCole, of New York City, for respondent.

The policy contains the express provision that:

“If the insured shall die within six calendar months from the date hereof the company will pay only one-half of this sum. After six months from this date the policy will be in force for the full amount.”

The policy was dated the 28th of October, 1912, and the deceased died in January, 1913. Under this policy, therefore, but one-half of the amount insured was payable. We agree with the Appellate Term in the construction of section 58 of the Insurance Law.

The determination and judgment are therefore modified, by reducing the judgment accordingly, and, as so modified, affirmed, without costs.

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