Opinion
June, 1936.
Present — Lazansky, P.J., Young, Hagarty, Johnston and Adel, JJ.
In an action to recover upon a life insurance policy. order denying plaintiff's motion for judgment on the pleadings and granting defendant's cross-motion for summary judgment, and judgment entered thereon, unanimously affirmed, without costs. It is not disputed that the insured well knew at the time he received the amount of the loan that the annual premium due November 28, 1930, had been deducted. He was not, therefore, misled. ( del Rio v. Prudential Ins. Co., 269 N.Y. 135.) He further well knew, and was advised by defendant, that unless the annual premium due November 28, 1931, was paid, the policy would lapse and become forfeited. The premium was not paid and defendant is, therefore, entitled to summary judgment. ( Starker v. Prudential Insurance Company of America, 246 App. Div. 567.)