The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
This is a motion made by the defendant for the following relief:
"1. For summary judgment in favor of the defendant, dismissing the complaint upon the merits (under Rule 56 of the Federal Rules of Civil Procedure).
"2. In the alternative, that the Court, by examining the pleadings and evidence before it, and by interrogating counsel, shall ascertain what material facts exist without substantial controversy, and what material facts, if any, are actually and in good faith controverted, and that the Court make an order specifying the facts that appear without controversy, and directing such further proceedings in the action as are just (under Rule 56(d) of the Federal Rules of Civil Procedure).
"3. In the alternative, for an order determining which, if not all, of the matters set forth in the defendant's Request for Admissions shall be deemed admitted, upon the ground that the plaintiff has not served or filed a sworn statement either denying specifically the matters of which an admission is requested, or setting forth in detail the reasons why she cannot truthfully either admit or deny those matters (as required by Rule 36 of the Federal Rules of Civil Procedure)."
The plaintiff, the widow of Samuel A. Walsh, brought this action for double indemnity benefits under a policy of life insurance, upon the ground that the death of her husband, the insured, was caused solely by accidental means.
The policy of insurance provides for the payment of double the amount of the policy in the event that the insured's death "resulted, directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means." The policy further provides that the insurance company "shall not be liable for any payment under this double indemnity provision if such death shall directly or indirectly result * * * from any violation of law by the insured, * * * from poisoning or infection other than that occurring simultaneously with and in consequence of bodily injury, from bodily or mental infirmity, or from disease of any kind."
The policy contains an incontestable clause which reads as follows: "Incontestability. This Policy will be incontestable after it shall have been in force during the lifetime of the Insured for one year from its date of issue, except for non-payment of premium and except as to provisions and conditions relating to benefits in the event of total and permanent disability and those granting additional insurance specifically against death by accident; but if the age of the Insured has been misstated any sum payable hereunder shall be such as the premium paid would have purchased at the correct age. The age of the Insured will be admitted by the Company at any time upon satisfactory proof." The policy by its terms became incontestable after one year. This did not effect the double indemnity provision as it was always contestable. Steinberg v. New York Life Insurance Company, 263 N.Y. 45, 188 N.E. 152, 90 A.L.R. 642; Manhattan Life Insurance Company v. Schwartz, 274 N.Y. 374, 9 N.E.2d 16; Equitable Life Assurance Society v. Kushman, 276 N.Y. 178, 11 N.E.2d 719.
The defendant in its first defense alleges that the insured made certain statements, answers, and warranties in his application for the policy which were false, fraudulent, and untrue; that the application for the policy contained a provision that the only personal injury which the insured had ever sustained was a fractured right wrist in 1910 and that he had not consulted with, or been attended by, any physicians or surgeons during the seven years preceding the application, for anything not mentioned in the application and that he had never used beer, wine, or other alcoholic stimulants to excess and that he had never been treated for alcoholism. It is further alleged in the first defense that the application for the policy failed to disclose that the insured "had had personal injuries, to wit, a fracture of the lower right jaw in or about October, 1922, and an injury to his left elbow in June, 1924, causing an acute bursitis, and a transverse lacerated wound of the left said of the face below the eye, with contusions of the face and eye, in July, 1924, and he had consulted with, and had been attended by, physicians and surgeons for said injuries; and he had used beer, wine and other alcoholic stimulants to excess; and he had been treated for alcoholism."
The second defense is in effect the same as the first defense, except the alleged misstatements in the application are pleaded as material misrepresentations.
The third defense alleges that the policy contains the following provision: "Risks Not Assumed. The Company shall not be liable for any payment under this double indemnity provision if such death shall directly or indirectly result from engaging as a passenger or otherwise in aeronautic or submarine operations, from war, riot or insurrection or from any act incident thereto, from military or naval service in time of war, from any violation of law by the Insured, from self-destruction while sane or insane, from police duty in any police organization, from poisoning or infection other than that occurring simultaneously with and in consequence of bodily injury, from bodily or mental infirmity, or from disease of any kind." It further alleges that the injuries sustained by the insured resulted directly or indirectly from violations of law, including a violation of the Penal Law of the State of New York, Consol. Laws, c. 40, Section 722, relating to disorderly conduct, which reads as follows:
"§ 722. Disorderly conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
"1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;
"2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others."
In the third defense the defendant further alleges that the death of the insured resulted directly or indirectly from various causes, including chronic and acute alcoholic poisoning, not occurring simultaneously with and in consequence of bodily injury; and from mental and bodily infirmities and diseases, including chronic and acute alcoholism, delirium tremens and pneumonia.
Any one of the three defenses, if established, would defeat plaintiff's recovery. See Charlton v. Metropolitan Life Insurance Company, 202 App.Div. 814, 195 N.Y.S. 64; Sparer v. Travelers' Insurance Company, 185 App.Div. 861, 173 N.Y.S. 673; Klapholtz v. New York Life Insurance Company, 218 App.Div. 695, 219 N.Y.S. 64; Ginsburg v. Pacific Mutual Life Insurance Company of California, 2 Cir., 89 F.2d 158.
Pursuant to Rule 36 of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c, the defendant's attorneys served upon plaintiff's attorneys their "request for admissions" regarding the insured's injuries and alcoholism prior to the application for insurance and regarding the violation of law shortly before his death. These "requests for admissions" are as follows:
"The defendant, The Connecticut Mutual Life Insurance Company, requests the plaintiff, Mabelle Walsh, to make the following admissions for the purpose of this action only, and subject to all pertinent objections to admissibility, which may be interposed at the trial:
"That each of the following statements is true:
"1a. In October, 1922, Samuel A. Walsh (plaintiff's deceased husband) sustained a personal injury, to-wit, a fracture of his jaw.
"1b. Said fracture was on the right side of the lower jaw.
"1c. Said Samuel A. Walsh consulted Dr. Henry S. Dunning of New York, in October, 1922.
"1d. Said Samuel A. Walsh consulted said Dr. Dunning in October, 1922, for said fracture of the jaw.
"1e.Exhibit A, annexed hereto, is a correct copy of said Dr. Dunning's record of his treatments of said Samuel A. Walsh in October and November, 1922.
"1f. The facts stated in Exhibit A, annexed hereto, are correct.
"1g. In or about October, 1922, or thereafter, said Samuel A. Walsh informed the plaintiff that he had received an injury to his jaw.
"1h.Said Samuel A. Walsh informed the plaintiff that such injury was a fracture of his jaw.
"1i. Said Samuel A. Walsh informed the plaintiff that he sustained said injury to his jaw by being struck by a person's fist.
" 1j. Said Samuel A. Walsh informed the plaintiff that he sustained said injury to his jaw while he was intoxicated by the use of alcoholic stimulants.
"1k. Said Samuel A. Walsh informed the plaintiff that he sustained said injury while engaged in a fight or brawl.
"1 L. Said Samuel A. Walsh informed the plaintiff that he had been treated by Dr. Dunning for said injury.
"2a. In June, 1924, said Samuel A. Walsh sustained a personal injury, to-wit, an actue ...