
    Volker v. Metropolitan Life Ins. Co.
    (New York Common Pleas—General Term,
    October, 1892.)
    A condition in defendant’s policy read as follows: “No obligation is assumed by the company prior to the date herewith, nor, unless upon said date, the assured is alive and in sound health.” On the trial it appeared that upwards of three years before the date of the policy in question the insured was afflicted with chronic asthma, and that this ailment accompanied by subsequent and resultant complications, led to his death. Judgment was rendered for plaintiff. Held, error ; that it was the intention of the parties to the contract of insurance that the inception of defendant’s risk should be dependent upon the fact that at the date of the policy in question the assured should be alive and in sound health; these failing, defendant’s liability under the policy never attached.
    
      Appeal by defendant from a judgment of the District Court in the city of ¡New York for the ninth judicial district in favor of the plaintiff.
    Action by the beneficiary to recover upon two policies of insurance on the life of her husband.
    
      R. Van Damm, for plaintiff (respondent).
    
      Wm. H. Arnoux, for defendant (appellant).
   Bischoff, J.

The judgment appealed from is plainly unauthorized by the evidence, and should be reversed.

Plaintiff’s recovery was upon one of the policies only, and this provided as follows: “ No obligation is assumed by the company prior to the date hereof, nor, unless upon said date, the assured is alive and in sound health.”

On the trial it appeared conclusively that for upwards of three years before the date of the policy the assured was afflicted with chronic asthma to such an extent that he was unable to pursue his usual calling, and that this ailment, accompanied by subsequent and resultant complications, led to his death.

No argument is required to demonstrate that it was the intention of the parties to the contract of insurance that the inception of defendant’s risk should be dependent upon the existence of certain conditions, to wit, that at the date of the policy the assured be alive and in sound health; and, these failing, defendant’s liability under the policy never attached.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Pryor, J., concurs.

Judgment reversed and new trial ordered.  