Opinion
February 17, 1939.
Appeal from the City Court of the City of New York, Bronx County.
Thomson McGinty [ E.V. Conwell of counsel], for the appellant.
Alexander Green [ James D. Ewing of counsel], for the respondent.
John J. Bennett, Jr., Attorney-General [ Henry Epstein, Solicitor-General, and John F.X. McGohey, Assistant Attorney-General, of counsell, appearing for the Superintendent of Insurance of the State of New York as amici curiae.
In view of the provisions of subdivision 1 of section 101-a and of subdivision 6 of section 101-b Ins. of the Insurance Law, it was unlawful for the defendant, in issuing a policy of group life insurance, to attempt to exclude from the coverage of the policy employees over a certain age. The case not being one of those specified in subdivision 2 of section 101-a of said statute the company was obliged to insure either all of the employees of the employer or else all employees of a class "determined by conditions pertaining to the employment." The age of an employee is not a "condition pertaining to the employment," but rather a condition pertaining to the employee himself.
The provisions attempting to limit the coverage of the policy to employees below a certain age must accordingly be disregarded. It follows that plaintiff is entitled to judgment on the pleadings. Under the provisions of its policy defendant is at most entitled to an offset for the amount of premiums which should have been paid had the age of plaintiff's deceased husband been correctly stated. The policy provides for an adjustment of the premium and not of the amount of insurance as it could have done under the provisions of subdivision 3 of section 101-b Ins. of the Insurance Law. No such offset has been pleaded, defendant, in addition to denials, relying only on a complete defense based upon the age of plaintiff's husband.
Order reversed, with ten dollars costs and disbursements, and motion granted, with leave to serve an amended answer within six days after service of order entered hereon, on payment of costs, with leave to appeal to the Appellate Division.
All concur. Present — HAMMER, SHIENTAG and NOONAN, JJ.