Jensen v. Metro. Life Ins. Co.

• Decision Date: 11 July 1929
• Citation: 251 N.Y. 336,167 N.E. 462
• Parties: JENSEN v. METROPOLITAN LIFE INS. CO.
• Court: New York Court of Appeals Court of Appeals

251 N.Y. 336

167 N.E. 462

JENSEN

v.METROPOLITAN LIFE INS. CO.

Court of Appeals of New York.

July 11, 1929.

Action by Madeline Jensen, as administratrix of the goods, etc., of Jacob Jensen, deceased, against the Metropolitan Life Insurance Company. From a judgment of the Appellate Division (225 App. Div. 834, 232 N. Y. S. 779) affirming a judgment in favor of plaintiff entered on an order of the Special Term which granted a motion made by plaintiff and judgment in her favor upon the pleadings, defendant appeals.

Judgment of Appellate Division and that of Special Term reversed, and motion denied.

Appeal from Supreme Court, Appellate Division, Third department.

Martin T. Nachtmann, of Albany, for appellant.

John J. Finn, of New York City, for respondent.

HUBBS, J.

The defendant issued its industrial policy, dated April 28, 1919, upon the life of Jacob Jensen. The insured died September 8, 1920. The plaintiff was appointed administratrix on October 25, 1927, and this action was commenced on November 7, 1927. The policy was payable upon the death of the insured to his executor or administrator. It contains an incontestability provision as follows: ‘ Incontestability. Subject to the restrictions as to Military or Naval Service as contained herein, if any, this policy shall be incontestable after two years, from the date of its issue, except for nonpayment of premiums, fraud or misstatement of age.’ The answer herein sets up affirmative defenses, alleging that the policy is void because of breach of conditions by the insured. It alleges that the insured was not in sound health at the time the policy was issued and that before its date he had been attended by physicians for a pulmonarydisease or chronic bronchitis or disease of the heart. The plaintiff's motion for judgment on the pleadings was granted upon the ground that the policy became incontestable at the expiration of two years from the date when it was issued.

The insured died 16 months and 10 days after the policy was issued. No administrator of his estate was appointed until October 25, 1927, over 7 years after his death. At the time of the insured's death there remained 7 months and 20 days of the period of 2 years within which the company could contest the validity of the policy. After the death of the insured there was no one in existence against whom the company could commence an action to cancel the policy and that situation continued until the appointment of the plaintiff as administratrix.

Under a policy like the one in question, if the company desires to contest its validity the contest must be started within 2 years from the issuing of the policy even though the insured has died within that period. Piasecki v. Metropolitan Life Ins. Co., 214 App. Div. 852, 211 N. Y. S. 931, affirmed 243 N. Y. 637, 154 N. E. 637;Mutual Life Ins. Co. of New York v. Hurni Packing Co., 263 U. S. 167, 44 S. Ct. 90, 68 L. Ed. 235, 31 A. L. R. 102. In each of those cases there was some one in existence, after the death of the insured and before the period within which the company could contest the validity of the policy had expired, against whom the company could commence an action for that purpose.

This court recently decided, in the case of Killian v. Metropolitan Life Ins. Co., 251 N. Y. 44, 166 N. E. 798, 800, that a contest, within the meaning of the provision in question, is a contest in a court and not a mere notice of rejection. In that case Chief Judge Cardozo wrote: ‘A contest, then, begins when the insurer avoids, or seeks to avoid, the obligation of the contract by action or defense. If the insured or the beneficiary is plaintiff, suing to declare the policy in force or to recover money due, the contest takes its start when the insurer serves an answer...