New York Life Ins. Co. v. Marotta, 4692.
| Decision Date | 11 April 1932 |
| Docket Number | No. 4692.,4692. |
| Citation | 57 F.2d 1038 |
| Parties | NEW YORK LIFE INS. CO. v. MAROTTA et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Lindabury, Depue & Faulks, of Newark, N. J. (Burtis S. Horner, of Newark, N. J., and Mahlon M. Meier, of Glen Ridge, N. J., of counsel), for appellant.
Blanchard & Carey, of Newark, N. J. (Robert Carey, Jr., of Newark, N. J., of counsel), for appellees.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMSON, District Judge.
This suit was brought as an action at law to recover the proceeds of two policies of life insurance issued by the defendant company to one Andrea Marotta, now deceased. Each policy insured the life of Marotta in the sum of $5,000. In one of the policies, Louise Marotta, the daughter of the insured, and in the other, Carmela Marotta, the wife of the insured, is named as beneficiary.
The statement sets forth the issuance of the policies, the death of Marotta, the proof of death, notice thereof to the defendant, demand for payment, and refusal of the demand. The answer to the action on each policy admitted the issuance of the policy, the death of Marotta, the notice of his death, and demand by plaintiffs for payment. It is denied, however, that plaintiffs were entitled to the proceeds of the policies, and alleged that each policy was issued upon a written application duly filled out and signed by the insured; that, as a part of the application, Marotta was asked, and required to answer fully, certain questions, among others, whether he had ever consulted a physician, or suffered from any ailment or disease of the brain or nervous system, the heart, blood vessels, lungs, and other designated parts of the body. One of the inquiries was whether he had ever had rheumatism or gout. To all of these questions he answered "No." As to whether he had ever consulted a physician for any ailment or disease not included in the above answers, he replied, "No." As to whether he had consulted or been examined or treated by a physician within the past five years, he replied: "Dr. Simmons, Prospect Street, Maplewood, New Jersey, in March 1929, one visit."
Defendant alleged that a number of these answers were false, and known by the applicant to be false, at the time they were made. The defendant also set up equitable defenses to each of the counts, alleging the discovery by the defendant, that the insured's answers contained in his application were false and fraudulent, and asked for rescission of the policies, notice thereof being given to the beneficiaries and executors under the insured's will, together with tender of premiums paid on the policies, and demanding that the policies be surrendered for cancellation. It will thus be seen that the defense was both legal and equitable, and upon these two defenses it had a right to be heard. No application was made prior to the...
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