Volker v. Metropolitan Life Insurance — 50 N.Y. St. Rep. 199

Majority

p. 199

Louise Volker, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

(New York Common Pleas,

General Term,

Filed January 3, 1893.)

Headnote

Insurance (Life)—Conditions of policy.

The policy provided that “no obligation is assumed by the company prior to the date hereof, nor unless upon said date the assured is alive and m sound health ” It appeared that for three years before the policy issued the insured was afflicted with chronic asthma so as to be unable to pursue his usual calling, and that such ailment with resultant complications led to his death. Meld, that defendant’s liability under the policy never attached.

Appeal by defendant from a judgment of the district court, in the city of blew York, for the ninth judicial district, in favor of the plaintiff.

Action by the beneficiary to recover upon two policies of insurance on the life of her husband.

R. Van Damm, for resp’t;

Wm. H. Arnoux, for app’lt.

The judgment appealed from is plainly unauthorized by the evidence, and should be reversed.

Plain tiff's recovery was upon one of the policies only, and this provided as follows: 11 No obligation is assumed by the company prior to the date hereof, nor unless upon said date the assured is alive and in sound health.”

On the trial it appeared conclusively that for upwards of three years before the date of the policy the assured was afflicted with chronic asthma to such an extent that he was unable to pursue his usual calling, and that this ailment, accompanied by subsequent and resultant complications, led to his death.

_ bfo argument is required to demonstrate that it was the intention of the parties to the contract of insurance that the inception of defendant’s risk should be dependent upon the existence of certain conditions, to wit: that at the date of the policy the assured be alive and in sound health; and, these failing, defendant’s liability under the policy never attached.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event

Pryor, J., concurs.