Majority
p. 154Mary Marshall, App’lt, v. The Women’s Mutual Insurance & Accident Company of America, Resp’t. (New York Superior Court, General Term, Filed December 1, 1890.)
Headnote
Insurance (lies)—Reinstatement—Fraud.' At the time of an alleged reinstatement the member was sick in hospital with the disease of which he subsequently died, which fact was concealed from defendant. Held, that this avoided the reinstatement.
Appeal from judgment entered upon a dismissal of the complaint at the trial, and from an order denying plaintiff’s motion for a new trial on the minutes.
Oharles H. Lovett {Abel Orook, of counsel), for app’lt; John A. Kamping, for resp’t.
This action was brought on a certificate oí membership. The evidence is uncontradicted that, when the plaintiff took certain steps to have Charles Marshall, whose life had been insured, reinstated, the said Marshall was lying sick in the hospital with the disease from which he subsequently died. That fact was concealed from the defendant. Such concealment avoided whatever was done towards a reinstatement
Upon the whole case there was not sufficient evidence upon which the jury could have found that the defendant waived the forfeiture clause.
The complaint was properly dismissed' and the judgment and order-should be affirmed, with costs.
Sedgwick, Ch. J., and O’Gorman, J., concur.