Opinion
October 31, 1949.
In an action by the plaintiff, the beneficiary of a policy of accident insurance, the defendant moved for summary judgment under rule 113 of the Rules of Civil Practice, which motion was denied. The defendant appeals from the order denying its motion. Order affirmed, with $10 costs and disbursements. The burden of establishing that death occurred in a manner set forth in the exception clause of the policy is upon the defendant. ( Haggerty v. Commercial Travelers Mut. Accident Assn. of America, 271 App. Div. 839.) In support of the motion it relied upon the admission that death resulted from an assault, which is contained in the proofs of loss. That admission is subject to explanation. ( Wachtel v. Equitable Life Assur. Soc., 266 N.Y. 345, 351; Gangi v. Fradus, 227 N.Y. 452, 457.) Plaintiff asserts she had and has no personal knowledge of the manner in which death occurred, and that her proofs of loss were based on information which she has been informed was inaccurate. Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.