Krohn v. Steinlauf
| Decision Date | 06 June 1960 |
| Citation | 11 A.D.2d 695,204 N.Y.S.2d 960 |
| Parties | Bertha KROHN and Nat Evenstein, as executors of the estate of Jack Krohn, deceased, and Samuel Schwartz, Appellants, v. Esther STEINLAUF, as executrix of the estate of Irving Steinlauf, deceased, Luggage and Leather Goods Manufacturers of America, Inc., Defendants, and The Travelers Insurance Company and The Mutual Benefit Life Insurance Company, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Jacob Schechner, New York City, for appellants.
Galli Terhune, Gibbons & Mulvehill, New York City, for respondent Travelers Ins. Co. John G. Donovan, New York City, of counsel.
Littlefield, Miller & Cleaves, New York City, for respondent Mutual Benefit Life Ins. Co. A. Amasa Miller, New York City, of counsel.
Before NOLAN, P. J., and BLDOCK, UGHETTA, CHRIST and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover death benefits allegedly due and payable pursuant to the terms of two group life insurance policies, plaintiffs appeal from so much of an order of the Supreme Court, Queens County, dated November 9, 1959, as : (1) denies their motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment against the two defendant insurance companies; and (2) grants said defendants' cross motions, pursuant to the same rule, to dismiss the complaint.
Order insofar as appealed from modified: (a) by striking out its second ordering paragraph granting the cross motions of the defendant insurance companies for summary judgment dismissing the complaint; and (b) by substituting therefor a provision denying such motions. As so modified the order, insofar as appealed from, is affirmed without costs.
In our opinion, the record fails to establish the right of any of the parties hereto to summary judgment. Furthermore, the defense attempted to be interposed by the said defendants was that prior to the death of the insured, the insurance upon his life had been terminated, either by cancellation under the terms of the policies or by mutual agreement between said defendants and the employer member of the general group. In either case, the defense consists of new matter which must be pleaded (cf. Globe & Rutgers Fire Ins. Co. v. London Mut. Fire Ins. Co. of Canda, 185 App.Div. 366, 173 N.Y.S. 221). The said defendants have failed so to plead. Summary judgment may not be granted to a defendant, dismissing the complaint upon the basis of such a defense unless it is pleaded...
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