
    Anna M. Malnati, as Ancillary Substituted Administratrix c. t. a. of the Last Will and Testament of Gertrude Malnati, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
   Action to recover on a life insurance policy in which the defendant pleaded and proved the defense of fraud. The trial court held that this defense was barred by the incontestability provision of the policy and awarded judgment to plaintiff. (165 Mise. 417.) Judgment unanimously affirmed, with costs. It is true that on a prior appeal in this case we held the defense was not barred by the incontestability provision. (220 App. Div. 53.) But subsequent to our decision the Court of Appeals, in another case, involving precisely the same provision, held to the contrary. (Kocak v. Metropolitan Life Ins. Co., 263 N. Y. 518.) Since our former decision has affected neither the right nor the remedy of any party and the action is still pending and we now have an opportunity to correct our former decision, we should do so rather than compel the plaintiff to go through the wasteful formality of an appeal to the Court of Appeals. Under the circumstances, we may say an extraordinary and exceptional situation arises justifying us in departing from the rules of res judicata and stare decisis. (Matter of Laudy, 161 N. Y. 429, 435; Cluff v. Day, 141 id. 580, 582, 583; Bumsey v. N. Y. & N. E. B. B. Co., 133 id. 79, 85; United States Mortgage & Trust Co. v. Buggies, 232 App. Div. 9; affd., 258 N. Y. 32.) Present — Lazansky, P. J., Hagarty, Davis, Johnston and Taylor, JJ.  