Greenberg v. Prudential Insurance of America , 246 A.D. 727 ( 1935 )

Plaintiff, as beneficiary, sues to recover on a life insurance policy. Defendant pleads, as complete defenses, fraudulent answers by the insured as to his health in his application for insurance, and counterclaims on the same grounds for rescission of the contract and for a declaration that the policy is void. Defendant noticed for trial at Special Term the issues raised by the counterclaim and reply. The plaintiff thereafter served on defendant a copy of a note of issue for a Trial Term, which was returned by defendant. Plaintiff thereafter moved to strike the action from the Special Term calendar, to stay all proceedings on defendant’s part for a trial at Special Term, and to compel defendant to accept plaintiff’s note of issue and demand for a jury trial, which motion was denied. As plaintiff’s complaint alleges a cause of action for a sum of money only, she is entitled to a jury trial of the issues. Should she recover, a trial of the issues raised by the counterclaim will be unnecessary. Should she not recover, a trial of the issues raised by the counterclaim will likewise be unnecessary as there would be an adjudication in defendant’s favor that the policy was obtained by fraud on the part of the insured. (Bennett v. Edison Electric Il. Co., 164 N. Y. 131; Walker v. A. C. Ins. Co., 143 id. 167; Deiches v. Western Development Co., No. 1, 157 App. Div. 674; Brody, Adler & Koch Co. v. Hochstadter, No. 1, 150 id. 527; Mutual Life Insurance Co. v. Marzec, 146 Misc. 26; Penn Mut. Life Ins. Co. v. McCarthy, 245 App. Div. 784, and Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285.) Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.