DeCesare v. John Hancock Mutual Life Insurance

Judgment and order affirmed, with costs. Memorandum: The decision is on the authority of Lampke v. Metropolitan Life Insurance Co. (279 N. Y. 157) decided November 29, 1938. We construe the word “ void ” as meaning “ void at the election of the insurer ” or, in other words, “ voidable ” (Blinn v. Schwarz, 177 N. Y. 252; Huntley v. Perry, 38 Barb. 569; Richards on Insurance [4th ed.], 171), and, therefore, not a condition precedent. We take into consideration the fact that the policy was prepared by the defendant, that the defendant did not rest on a general denial but affirmatively pleaded breach of the condition which was controverted by avoidance in the form of a waiver or estoppel, and that while proof of the waiver was received out of order it was a mere matter of procedure which the trial court had a right to vary. The burden of proving the waiver was on the plaintiff and the court so charged. All *1037concur. (The judgment is for plaintiff in an action under life insurance policies. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.