
    Joseph Piasecki, as Administrator of the Estate of Sophia Piasecki, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Argued October 14, 1926;
    decided November 16, 1926.)
    
      Insurance — contract —fraud — provision in policy for incontestability after two years applicable though insured dies before expiration of period — questions whether policy had been contested within term and as to fraud properly left to jury.
    
    
      Piasecki v. Met. Life Ins. Co., 214 App. Div. 852, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon two policies of life insurance issued December 5, 1921, upon the life of intestate. She died December 26, 1921. Proof of death was filed in August, 1923, and this action commenced March 18, 1924. The policies provided that no obligation was assumed by the company unless on the date the policies were issued the insured was in sound health, and also that they were void if the insured upon the date of the issuance thereof had been attended by a physician for any serious disease or complaint. It was shown that intestate was not in sound health when the policies were issued and that prior thereto she had been attended by a physician for serious diseases. The policy also provided: “ This policy shall be incontestable after two years from the date of its issue, except for non-payment of premiums, fraud or misstatements of age.” The trial court, following the case of Mutual Life Ins. Co. v. Hurni Packing Co. (263 U. S. 167), held that this latter provision meant that the policy should be incontestable on the simple condition that two years shall have elapsed from the specified date and not that it should be incontestable only if insured should have lived until two years after the risk attached and left to the jury whether defendant had contested the policies within the two-year period and whether there was fraud in obtaining the insurance.
    
      Judgment affirmed, with costs;
    
      Eugene Van Voorhis for appellant.
    
      Samuel Levy for respondent.
   no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.  