
    New York Life Insurance Company v. Eister
    December 29, 1937.
    
      Henry J. Sommer and Douglass D. Storey, for plaintiff.
    
      Richard H. Klein and A. Francis Gilbert, for defendant.
   Lesher, P. J.,

— The second exception is to the effect that the court erred in directing Frank C. Eister to pay the costs in this equity proceeding, inasmuch as he was not a party to the original contract between New York Life Insurance Company and Stella K. Eister and, therefore, it would not be equitable to be required to pay the costs, under the circumstances.

The contention of this exception, to the effect that Frank C. Eister was not a party to the original contract between plaintiff and Stella K. Eister, is correct. However, he was the beneficiary under the policy. Stella K. Eister died, and he attempted to collect, and had instituted suit in the Court of Common Pleas of Snyder County for the collection of the above-mentioned policy of insurance, which made it necessary for the company either to pay the insurance or defend.

The policy in question contained a clause that it could not be attacked after two years.

If the action of assumpsit bad been allowed to go forth without any attempt to set aside the policy of insurance, the time would have gone by for the company to raise any question as to the validity of its contract.

It was, therefore, forced to raise a defense in the manner in which it did.

We feel that the court, when it placed the costs on defendant in this case, was following the course which it should have followed, which would be in accordance with its other findings in this case. This exception is, therefore, dismissed.  