Opinion
June 21, 1943.
Action upon a policy of life insurance, in which the defendant interposed an affirmative defense that the insured had misrepresented the state of his health in answering questions contained in the application for insurance. Order, insofar as it grants plaintiff's motion for summary judgment, and the judgment entered thereon, reversed on the law, with ten dollars costs and disbursements, and the motion for summary judgment denied, with ten dollars costs. The appeal from said order, insofar as it denies defendant's cross motion to take the deposition of the insured's physician for the purpose of opposing plaintiff's motion for summary judgment is dismissed, without costs, as academic. The answer contained a defense based upon misrepresentation and an election to rescind the policy. The affidavits set forth facts which are sufficient to present a triable issue on that defense. The Special Term assumed that the defense alleged an executed rescission and that a prior tender of premiums was essential to the defense. Since the defendant alleges that it did not discover the misrepresentation until after the death of the insured, it was not necessary for the defendant to tender premiums prior to trial. ( Hill v. Metropolitan Life Ins. Co., 259 App. Div. 278.) Carswell, Johnston, Adel, Taylor and Lewis, JJ., concur.