Wilkes v. Equitable Life Assur. Soc. of the United States

• Decision Date: 29 July 1942
• Citation: 289 N.Y. 63,43 N.E.2d 812
• Parties: WILKES v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 63

43 N.E.2d 812

WILKES

v.EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

Court of Appeals of New York.

July 29, 1942.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Abraham Wilkes against the Equitable Life Assurance Society of the United States for disability benefits alleged to be due under nine life policies, wherein defendant filed counterclaims. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, 262 App.Div. 73, 27 N.Y.S.2d 935, reargument denied, 262 App.Div. 848, 29 N.Y.S.2d 712, entered December 19, 1941, modifying and affirming as modified, on the law and the facts, a judgment in favor of defendant entered upon a verdict rendered at a Trial Term, Schmuck, J., plaintiff appeals.

Modified, and as modified affirmed.

Copal Mintz, of New York City, for appellant.

James D. Ewing and William R. McDermott, both of New York City, for respondent.

CONWAY, Judge.

This action was instituted to recover disability benefits under nine life insurance contracts. The disability of plaintiff was conceded and no defense was interposed as to six of the policies. The defendant alleged by way of defenses and counterclaims that the issuance of the disability provisions of the other three policies had been procured by false and untrue representations. Those defenses and counterclaims were established. The judgment rescinded the disability provisions in the three policies, declared them lapsed for non-payment of premiums (those which would have been properly waived during disability had there been no falsity of representation), awarded defendant $12,300 for disability payments theretofore made, less the disability payments due plaintiff on the six unchallenged policies and costs and authorized the defendant to apply future disability benefits on those six policies toward satisfaction of the judgment. The Appellate Division modified by providing that the three policies should lapse only if the accrued premiums were not promptly paid and by correcting a mathematical error in the amount of the judgment.

We find merit in but one of appellant's contentions. The defendant may not be permitted to collect its money award out of the disability benefits already due or as they become due under the six uncontested policies. That would be violative of chapter 626 of the Laws of 1934, now in substance embodied in subdivisions 2 and 5 of section 166 (formerly s 55 b) of the ...