
    (68 Hun, 144)
    BATES et al. v. UNITED LIFE INS. ASS’N.
    (Supreme Court, General Term, First Department.
    March 17, 1893.)
    1. Life Insurance—Conditions of Policy—Nonforfeiture Clause.
    A life insurance policy provided that “after two years from the date hereof the only considerations that shall be binding upon the holder of this policy are that he shall pay the annual dues and assessments at the times and places, and in the manner, hereinafter stipulated, and that the regulations of the association as to age, occupation, and employment shall' be observed, and that in all other respects, if this policy matures after the expiration of said two years, this policy shall be indisputable.” Held, that such provision precluded the company, when sued on a policy issued more than two years before the death of the insured, from setting up in defense that the insured and the beneficiary were guilty of fraud in obtaining the policy. Wright v. Association, 23 N. E. Rep. 186, 118 N. Y. 237. followed.
    3. Practice—Judgment on Pleadings—Notice of Motion—Harmless Error.
    It is no objection to the validity of a judgment on the pleadings rendered at special term that, in the notice of motion, counsel confounded the judge’s chambers and the special term for hearing nonenumerated motions, where the judge acting at chambers also holds at the same time and place a special$tenn for such motions.
    Appeal from special term, ¡New York county.
    Action by William G. Bates, Mary Bates, and George B. Bates, against the United Life Insurance Association upon a policy of insurance upon the life of Levi M. Bates. From an order directing judgment on the pleadings, and from the judgment entered pursuant to such order, defendant appeals.
    Affirmed.
    The policy contained the agreement that “the said association does hereby further promise and agree that after two years from the date hereof the only considerations that shall be binding upon the' holder of this policy are that he shall pay the annual dues and assessments at the times and places, and in the manner, hereinafter stipulated, and that the regulations of the association as to age, occupation, and employment shall be observed, and that in all other respects, if this policy matures after the" expiration of said two years, this policy shall be indisputable.” Levi M. Bates died more than two years after the date of the policy. The association filed an answer setting up as a defense fraud on the part of the insured and the beneficiary in the application for the policy. Plaintiffs obtained judgment on the pleadings. The notice of the motion for judgment was as follows: “You will please take notice that, on the pleadings in this action, I shall move this court, at a special term thereof, to be held at its chambers, in the county- courthouse, in the city and county of New York, on the 7th day of November, 1892, at eleven o’clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for judgment as demanded in the complaint.”
    Argued before VAJST BRUNT, P. J., and O’BRIEN and FOLLETT, JJ. •
    Harry Wilber, for appellant.
    W. I. Washburn, for respondents.
   VAN BRUNT, P. J.

An answer having been interposed in this action, the plaintiffs claiming that no defense whatever was set up by such answer, made a motion for judgment upon the pleadings. at a special term of this court It is true that in the notice of .motion the counsel falls into the error, so frequently committed in tMs district, of not distinguishing between the judge’s chambers and the special term for the hearing of nonenumerated motions, simply because the judge acting at chambers also holds in the same room a special term for the hearing of nonenumerated motions. The motion was made at a special term, duly designated by the judges of this district to be held for the hearing of nonenumerated motions, and it therefore was heard in the proper court.

The motion seems to have been unwittingly made under section 637 of the Code, which provides that if a demurrer, answer, or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court, or to a judge of the court, for judgment thereupon, and judgment may be given accordingly. The motion in question was a motion upon the pleadings for judgment, manifestly upon the ground that the answer contained no defense, and was therefore frivolous, and this motion was granted. The only difficulty in the disposition of this appeal is the length of the brief which has been submitted by the defendant, which would seem to indicate that he did not think the answer was frivolous, although it manifestly is. The defense set up by the answer seems to have been expressly held to be unavailing in the case of Wright v. Association, 118 N. Y. 237, 23 N. E. Rep. 186, between which case and the one at bar we can see no distinction. The judgment should therefore be affirmed, with costs. All concur.  