The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This case comes before this court on a motion made by defendant to dismiss the complaint herein, under rule 113 of the Rules of Civil Practice of the state of New York, on the ground that this action has no merit, for the reason that the policy which is the subject-matter of this action lapsed without value for the nonpayment of a premium due thereon, September 19, 1932.
So much of rule 113 of the Rules of Civil Practice of the state of New York as is necessary for consideration reads as follows:
"1. To recover a debt or liquidated demand arising on a contract express or implied in fact or in law, sealed or not sealed. * * *
"The complaint may be dismissed or answer may be struck out and judgment entered in favor of either party on motion upon the affidavit of a party or of any other person having knowledge of the facts, setting forth such evidentiary facts as shall, if the motion is made on behalf of the plaintiff, establish the cause of action sufficiently to entitle plaintiff to judgment, and if the motion is made on behalf of the defendant, such evidentiary facts, including copies of all documents, as shall fully disclose defendant's contentions and show that his denials or defenses are sufficient to defeat plaintiff, together with the belief of the moving party either that there is no defense to the action or that the action has no merit, as the case may be, unless the other party, by affidavit or other proof, shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to a trial of the issues. If upon such motion made on behalf of a defendant it shall appear that the plaintiff is entitled to judgment, the judge hearing the motion may award judgment to the plaintiff, even though the plaintiff has not made a cross motion therefor."
This procedure is available to litigants in the federal courts by virtue of the Conformity Act (28 USCA § 724). Mac-Namara & Wadbrook Trading Co. v. Royal Ins. Co. (D.C.) 288 F. 985; Maslin v. Columbian Nat. Life Ins. Co. (D.C.) 3 F. Supp. 368; S.M. Hess & Bro. v. Small (D.C.) 288 F. 995.
The facts as set forth in the moving papers are undisputed, and the answering affidavits raise no issue of fact and the question before this court therefore is solely one of law.
The facts briefly stated are as follows:
Policy No. 948,181 was issued by defendant, Massachusetts Mutual Life Insurance Company, to one Adolph H. Mayers, in the sum of $25,000, on the 19th day of March, 1930. The annual premium payable for this policy was $1,821, and the first premium payable for this policy was $1,821, which was paid in cash at the time of issuance. In his application the assured, Adolph H. Mayers, which application is made a part of the policy, elected (a) to pay the premium on this policy annually in advance (No. 16 of application); (b) to have dividends applied in reduction of premium (17 of application); (c) extended term insurance as the nonforfeiture provision (18 of application). The original beneficiary at the time of the issuance of this policy was the insured's wife, Pauline Mayers. On May 6, 1930, at the request of the insured, the beneficiaries were duly changed to Pauline Mayers, the wife, and Sadie Millard, William Mayers, Natalie Green, Arthur Mayers, Bertram Mayers, and Sidney Mayers, children of the insured, equally. The plaintiff is one of the beneficiaries named, and brings this action against the defendant for what he alleges is his share of the $25,000 policy, which he contends the company should have kept in force up to and after April 1, 1934, the date of the insurer's death.
Plaintiff in his complaint recites certain provisions of the policy without quoting them, in paragraphs fourth, fifth, and sixth, and in the seventh paragraph alleges that the assured duly paid the premiums on said policy for a period of two years and six months, and that the assured made default in payment of the quarterly premium due on the 19th day of September, 1932. In paragraphs eighth and ninth the plaintiff charges that the defendant "wrongfully gave notice to the assured that said policy lapsed without any value whatsoever therein remaining for the benefit of the assured," and that as a consequence of this notice the assured was induced and led to believe that all his rights and benefits to said policy ceased and terminated upon the assured's default in payment of the premium due in Suptember, 1932, and also led the assured to believe that the selection by him of participating extended term insurance as the automatic nonforfeiture option in case of default would be idle and futile, thus wrongfully preventing and/or dissuading said assured from making a selection of participating extended term insurance as the nonforfeiture option as aforesaid. By the ninth paragraph he further alleged that by reason of the foregoing, the defendant waived the requirement that the assured select participating extended term insurance, and that accordingly no election of participating extended term insurance in case of default in the payment of premiums was necessary, and that said option became theretofore technically operative without further act on the part of the assured on the 19th day of September, 1932, the due date of the premium in default.
These allegations of paragraphs eighth and ninth require no extended consideration in the face of the application which became part of the policy of insurance, as the assured had chosen by 15 of the application automatic premium loan, by 17 of the application that dividends be applied in reduction of premiums, and by 18 of the application extended term insurance as the nonforfeiture provision desired.
Therefore the only question vital to this case which need be considered is whether upon the failure to pay the premium due September 19, 1932, the policy lapsed without value.
This is a question to be determined by the terms of the policy.
For the purpose of this motion, the following facts are conceded:
That policy No. 948,181, dated March 19, 1930, was issued by the defendant insuring one Adolph H. ...