The opinion of the court was delivered by: BYERS
The plaintiff seeks judgment against the defendant Insurance Company, reforming a Certificate of Life Insurance issued by it under its Group Life Creditors Policy No. GC-203 entered into with the defendant First Federal Savings and Loan Association of Hempstead, to be referred to as Federal.
The provision of the said Certificate sought to be reformed by its exclusion thereof, is as follows:
'Notwithstanding anything in the Policy to the contrary, the insurance under the Policy shall not cover death of the Debtor sustained while in or on any vehicle or mechanical device for aerial navigation, or in falling therefrom or therewith or while operating or handling any such vehicle or device, except that payment will be made for death resulting from any of the hazards of aviation while the Debtor is riding as a fare-paying passenger in a licensed passenger aircraft operated by a licensed pilot for an incorporated passenger carrier over a regular passenger route between definitely established airports and the Company shall be liable only for the return of the amount of premiums paid under the Policy for the insurance with respect to the Debtor whose death is not covered in accordance with the terms of this paragraph.'
The foregoing is printed in the same sized type as other provisions, but is on the reverse side. The front, however, contains the following: 'The provisions printed on the reverse side of this Certificate are hereby incorporated and made a part of this Certificate. This Certificate is not a part of and does not alter, modify, or constitute any of the provisions of said Policy or as it may be subsequently amended, altered or cancelled.'
The purpose of the Certificate was to insure payment up to the sum of $ 10,000.00 of a mortgage executed by the plaintiff and her deceased husband, Vinton E. Broidy, in the sum of $ 11,400.00, which with its accompanying pond was executed, acknowledged and delivered by the mortgagors when title to the premises involved was closed on March 15, 1948, in the office of the mortgagee.
At the closing, the mortgagors and their attorney, Mr. Nathaniel Taylor, were present, and the vendors, Mills by name, and their attorney, Mr. Lockwood, also, and the real estate broker, Mr. McDermott, and a Mr. Naumer who suggested the procurement by the debtor of the insurance Certificate involved in this litigation. It is material to the present issue to ascertain what was said in connection with the application for insurance; and to decide the legal effect to be given to any representations which the plaintiff says were made by the witness Naumer in that connection, if the evidence is in her favor on that issue.
Something should be said concerning the Policy and the purpose of the insurance, since this is not the ordinary case of an insured, or someone claiming under him, making an assertion that a life insurance Policy was not issued in accordance with an agreement reached between the Insurance Company and its Policy holder.
Here what is called a blanket policy of insurance, was issued by the defendant State Mutual Life Assurance Company to Federal, which is called the Creditor, on June 6, 1947, for the period of one year, by which the Company agreed to pay Federal 'immediately upon receipt of due proof of the death of any insured debtor, the amount for which the debtor is insured, to be applied by the Creditor (Federal) to the discharge of the indebtedness. Payment by the Company to the Creditor shall completely discharge the Company's liability to the extent of such payment. * * * If, on any date, the number of new debtors becoming insured hereunder in the preceding twelve months shall be less than one hundred, the Company, on the next renewal date, may decline to insure new debtors becoming indebted to the Creditor after such renewal date, provided that the Company shall give the Creditor at least thirty-one (31) days written notice that new debtors are not to be insured hereunder.'
Next is set forth a table of Premium from ages 21 to 70, inclusive, on each $ 1,000 of insurance, together with a provision for their calculation, based upon the number of thousands of dollars of insurance involved; and to the effect that Premiums are payable by the Creditor monthly in advance at the Home Office of the Company.
An eligible debtor is described as one who becomes indebted to the Creditor, provided he meets the following conditions:
(a) Not more than 240 equal monthly installments are required to pay his indebtedness.
(b) He is the principal wage earner, if the indebtedness is evidenced by an instrument executed by two or more persons.
There are clauses touching the establishment of eligibility, which involve approval by the Home Office of the Company, and the $ ...