
    Thomas Sexton, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    
      Insurance (Ufe) — action on policies — defenses of false representations, release and accord and satisfaction — summary judgment should not be granted where questions of fact are presented.
    
    
      Sexton v. Equitable Life Assurance Society, 223 App. Div. 738, reversed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 3, 1928, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for summary judgment. The action was to recover upon two policies of Ufe insurance. The answer set up affirmative defenses of false representations, release and accord and satisfaction. The motion was granted on the ground that the defenses were clearly insufficient in view of the “ incontestable ” clause of the pohcies.
    
      
      Peter C. Mann, Charles W. Pierson and James D. Ewing for appellant.
    
      John J. Finn for respondent.
   Judgment of Appellate Division and that of Special Term reversed, and motion for summary judgment denied, with costs in all courts, on the ground that there are questions of fact presented by the record which ought not to be determined on a motion for summary judgment.

Concur: Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ. Not sitting: Crane, J.  