We have examined the case of Rollo, assignee, v. Andes Ins. Co., 23 Gratt. 509, but as there is nothing which is at all in conflict with this opinion, it is unnecessary to make any comment thereon.
The challenge to the sufficiency of the affidavits submitted by the defendant, because of want of authentication, must be deemed to have been waived. ( Rogers v. Rogers, 54 App. Div. 195; Mix v. Andes Ins. Co., 74 N.Y. 53.) Under the denials of the defendant an issue of fact is presented as to whether or not the insured met his death as a consequence of a deliberate act and not as a consequence of accident. It asserts that he jumped from the roof of a building forty-five feet above the ground — a deliberate or reckless act — and, therefore, the injuries from which he died were self-inflicted. If that view be accepted, there is no liability under the policy. ( Fanti v. Travelers Ins. Co., 264 App. Div. 724.) Lazansky, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur. [ 177 Misc. 960. ]
We are of opinion that the motion for resettlement should have been granted. If the defendant should desire to appeal he would be entitled to have his preliminary objections considered, and he might be unable to do so unless it appears from the order that the objections were duly taken at the proper time. ( Mix v. Andes Ins. Co., 74 N.Y. 53; Matter of National Gramophone Corporation, 82 App. Div. 593.) It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for resettlement granted.