Opinion
November 30, 1942.
Action to recover the proceeds of a life insurance policy. Judgment in favor of plaintiff's intestate reversed on the law, with costs, and complaint dismissed on the law, with costs. It is undisputed that the insured, between the making of the application and the delivery of the policy, consulted a physician with respect to a duodenal ulcer from which he was suffering, and so breached a condition precedent set forth in the application as attached to the policy, and, therefore, a part of the contract. Under these circumstances, the contract never had a valid inception. ( Goldman v. New York Life Ins. Co., 152 Misc. Rep. 289; affd., without opinion, 242 App. Div. 665; New York Life Ins. Co. v. Watkin, 229 App. Div. 211; [First Department], affd. without opinion, 256 N.Y. 618; Polachek v. New York Life Ins. Co., 151 Misc. Rep. 172; affd. without opinion, 243 App. Div. 692; leave to appeal denied, 267 N.Y. xxxix.) The breach of warranty was material as it deprived the insurer of an opportunity to determine whether to accept or reject the application. ( Geer v. Union Mutual Life Ins. Co., 273 N.Y. 261. ) Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ., concur.