
    New York Life Insurance Company, Plaintiff, v. Samuel Chanson and Another, Defendants.
    Supreme Court, New York County,
    March 30, 1934.
    
      Louis H. Cooke, for the plaintiff.
    
      Joseph Wagner, for the defendants.
   Dore, J.

This is an action to rescind a reinstatement of a policy of life insurance in the sum of $5,000.

At the trial defendants contended that the insured had been continually and permanently disabled by reason of a serious heart affection from a date prior to April 4, 1931, the date on which the premium became due and on which the policy lapsed for nonpayment of the premium; that though no claim for disability was made until March, 1933, the insured was entitled to a waiver of the payment of the premium of April 4, 1931, and that, therefore, the policy has never lapsed and the application for reinstatement was unnecessary.

The policy lapsed for non-payment of the premium due April 4, 1931, and was reinstated in reliance on what this court has found were material misrepresentations contained in the written applicatian for reinstatement signed by the insured, dated August 3, 1931. For some time prior to the application the insured had been suffering from a serious heart disease, on account of which he had been consulting the witness, Dr. Spielman.

Under the terms of the policy, furnishing due proof of the condition of disability to the plaintiff company was a condition precedent to liability on the part of the company, and it was shown at the trial that no such claim was made until March, 1933.

Judgment for the plaintiff; counterclaims dismissed; submit judgment accordingly and decision containing findings of fact and conclusions of law on one day’s notice on or before April 6, 1934.  