Opinion
Argued October 8, 1942
Decided December 3, 1942
Appeal from the Supreme Court, Appellate Division, First Department, DELEHANTY, J.
James D. Ewing, William R. McDermott and Eugene Z. DuBose for Equitable Life Assurance Society of the United States, appellant.
Albert Falck and Joseph W. Kirkpatrick for Corn Exchange Bank Trust Company, appellant and respondent.
Sidney A. Clarkson, Bernard Cahn, Alfred Rathheim and Thomas C. Fogarty for respondents.
Order affirmed, with costs, upon the ground that the insurer, by the payment of death benefits due under its contract of insurance, must be deemed to have waived all questions of law or fact, except fraud, relating to the contract and which, by the exercise of reasonable inquiry, might have been raised at the time of such payment or prior thereto ( National Life Ins. Co. v. Minch, 53 N.Y. 144, 151; Mutual Life Ins. Co. v. Wager, 27 Barb. 354, 368, 369; and see Couch Cyclopedia of Insurance Law, vol. 8, § 1954, p. 6497). No opinion.
Concur: LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ. Dissenting: LEHMAN, Ch. J., on the ground that under the terms of the policy the amount of insurance payable at the death of the insured was calculated upon the basis of the statement of his age made for that purpose by the insured; that the insurer had no reason to question the truth of the statement and was entitled to rely upon it without independent inquiry and that a payment made in reliance upon that statement cannot constitute a waiver of any defense or claim that the insurer might have urged it if had been advised of the actual age of the insured.