Sanganetti v. Prudential Insurance of America , 246 A.D. 681 ( 1935 )

Judgment and order affirmed, with costs. All concur, except Sears, P. J., who dissents and votes for reversal on the law on the ground that error occurred in charging the requests of the plaintiffs’ counsel to the effect that “ a presumption arises that the age stated in the policy (of life insurance) is the true age; ” and further “ that the presumption arising from the receipt in evidence of the policy and application, that the age stated therein is the true age, and stands until rebutted by evidence which fairly satisfies the jury that the insured was in fact of some other age which would preclude or vacate plaintiffs’ right to recovery.” The defense based upon the misstatement of age was an affirmative defense and the burden was on the defendant to establish it (despite the charge of the court to the contrary) and the age stated in the policy was no proof whatever of the actual age of the insured and no presumption in respect to the true age arose therefrom. (The judgment is for the plaintiffs in an action to recover death benefit under two life insurance policies. The order denies motion for a new trial on the minutes.) Present — Sears, P. J., Taylor, Edgcomb, Crosby and Lewis, JJ.