Bono v. United States
| Decision Date | 25 July 1940 |
| Docket Number | No. 336.,336. |
| Citation | 113 F.2d 724 |
| Parties | BONO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Harry Karsh, of New York City, for plaintiff-appellant.
John T. Cahill, U. S. Atty., of New York City (Clarence W. Roberts, Asst. U. S. Atty., of New York City, of counsel), for appellee-defendant.
Before L. HAND, CHASE, and PATTERSON, Circuit Judges.
The plaintiff has appealed from a judgment of the District Court for the Southern District of New York which dismissed his complaint in a suit he brought, on February 16, 1939, as the beneficiary of a war risk insurance policy to recover certain monthly payments which became payable by reason of the death of the insured. The dismissal was on motion without trial on the merits solely on the ground that the suit was not brought within the statutory period allowed therefor.
Though the appellant has briefed this appeal as though facts stated in the brief, but not shown by the record, may be given effect it is, of course, the record alone which controls as to the facts. Schley v. Pullman's Palace Car Co., 120 U.S. 575, 7 S.Ct. 730, 30 L.Ed. 789. That shows only such facts as were alleged in the complaint. For present purposes they are to be accepted as true and are, so far as now material, as follows: The plaintiff is a resident of the City of New York who had a brother, Joe Bono. This brother, a soldier in the United States army, applied for, and there was issued to him, a policy of war risk insurance payable in case of the death of the insured to the plaintiff as beneficiary in two hundred and forty monthly installments of $57.50 each. Joe Bono was killed in action on October 15, 1918 while the policy was in full force. On or about October 16, 1927 the defendant began to make monthly payments to the plaintiff as the beneficiary under the policy and continued to do so until September 16, 1938 when one hundred and thirty-two such payments had been made to him. Thereafter the defendant failed and refused to continue to make the remainder of the payments as provided by the policy though the plaintiff "has duly demanded payment of said amounts of insurance by filing a claim with the United States Veterans' Administration on the 25th day of October 1938, and said claim has been denied by a letter from Frank T. Hones, Administrator, Veterans' Administration, dated the 30th day of November 1938, and said defendant has refused to pay plaintiff any part thereof and a disagreement...
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