
    Myra I. Gilman, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    
      Insurance — action to recover upon policy of life insurance issued but never delivered to insured — complaint properly dismissed.
    
    
      Gilman v. Metropolitan Life Ins. Co., 213 App. Div. 839, affirmed.
    (Argued January 13, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 10, 1925, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for' judgment on the pleadings. The action was to recover upon a policy of life insurance. Early in December, 1918, plaintiff’s husband applied to an agent of defendant for insurance; he was physically examined and his application forwarded to the home office, where the policy was issued and sent to the agent, but never delivered, the insured having been taken ill on December twentieth and died December thirty-first. The application contained the following provision: “ It is further agreed that the company shall incur no liability under this application until it has been received, approved and the policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the life proposed.” It was alleged that the applicant paid a portion of the premium at the time of making the application and tendered the balance before he was taken ill.
    
      Walter A. Fullerton for appellant.
    
      Spencer B. Eddy for respondent.
   Judgment affirmed, with costs; no opinion.

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