The opinion of the court was delivered by: BYERS
This is an action under the War Risk Insurance Act and the World War Veterans' Act (38 USCA § 421 et seq.), based upon the plaintiff's claim to insurance benefits under his was risk insurance policy, which the petition alleges was kept in full force and effect by premium payments and operation of law until on or about August 31, 1926. Total disability is alleged prior to the last mentioned date.
The petition was verified September 1, 1932, and filed in this court on September 6, 1932.
Paragraph first avers that the plaintiff is a resident of Brooklyn in this judicial district.
Paragraph seventh alleges that the plaintiff became entitled to the benefits of the insurance as above stated, and that he has made demand for payment, which has been refused, and "disagreement now exists between the parties as contemplated by law."
An answer was verified February 6, 1933, taking issue, among other things, with the allegations of the first and seventh paragraphs, and pleading, as a separate and distinct defense, the statute of limitations.
The case was duly noticed for trial and note of issue was filed on February 8, 1933.
Apparently the case was reached for trial in due course and answered "ready" for the defendant on several occasions, but finally was marked off at the request of the plaintiff's attorneys. When this took place, the affidavits do not disclose. It is said that a notice of trial for the November, 1933, term has been served by the plaintiff, and, by affidavit filed October 20th, plaintiff's attorney gave notice of motion for an order directing that the petition filed as stated on September 6, 1932, be deemed to have been filed as of October 13, 1932, and the motion arising thereunder was adjourned to November 1, 1933.
By affidavit verified October 27th, the defendant has made a motion, returnable November 1, 1933, for an order dismissing the petition for the reason that the action was brought prior to the date of the disagreement, and that the plaintiff did not reside in the Eastern District of New York and hence this court is without jurisdiction in the action.
The information as to the plaintiff's residence seems to have been obtained on or about October 25, 1933, when a bill of particulars was served on his behalf, pursuant to demand made October 17, 1933, and in that it is shown that "to the best of plaintiff's recollection, he resided at 329 East 73rd Street, Borough of Manhattan, City of New York."
The question of the timeliness of the plaintiff's action is the most important one presented by the motion. It appears from the bill of particulars that the plaintiff filed his claim for payment under his policy on June 29, 1931; namely, on that date, he "made demand addressed to Frank E. Hines, Administrator of Veterans Affairs, Washington, D.C."
Apparently that demand was dated four days prior to the expiration of the time within which a claim might be made under the applicable provisions of the statute enacted for World War veterans' relief (World War Veterans' Act 1924, as amended July 3, 1930, title 38 U.S.C. § 445 [38 USCA § 445]).
This gives the plaintiff the benefit of the entire time which elapsed between the commencement of the 30th day of June, 1931, and the expiration of the entire day of July 3, 1931.
Action by the Veterans' Bureau upon his claim is said, in the bill of particulars, not to have been taken until May 21, 1932, when a letter was directed to him, signed by the Director of Insurance. The date of receipt of that letter is not stated in the bill of particulars and, under the decision of Creasy v. U.S. (D.C.) 4 F. Supp. 175, for reasons therein ...