Opinion
January 22, 1940.
Present — Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ. [ 171 Misc. 878.]
In an action on a policy of ordinary life insurance, defendant appeals from an order of the Appellate Term, affirming a judgment of the City Court in favor of the plaintiff, entered on her motion to strike out the answer and for summary judgment. Order unanimously affirmed, with costs. The question in the case is whether a dividend, concededly ascertained and apportioned by defendant to the policy in suit, extended the insurance to the date of the insured's death. Under subdivision 1 of section 83 Ins. of the Insurance Law (Consol. Laws, chap. 28), which regulates the payment of dividends on ordinary policies, the dividend in question had that effect. Defendant has incorporated in its form of ordinary policy, and relies on here as a defense, language taken from subdivision 2 of section 83, permitting deferred payments of dividends on industrial policies only. That language has no application to an ordinary policy.