Opinion
December, 1928.
Appeal from Supreme Court, Cayuga County.
Present — Clark, Crouch, Taylor, Sawyer and Edgcomb, JJ. Order so far as appealed from reversed on the law and facts, with ten dollars costs and disbursements, action severed and summary judgment directed in favor of the infant appellants, for the relief demanded in the motion papers, with ten dollars costs. [ 132 Misc. 892.]
We are of the opinion that the various defenses set up in the answer, with the exception of that of accord and satisfaction, are barred by the provisions of the incontestability clause contained in the policy. The moving papers of the infant appellants are sufficient to require the respondent to show by affidavit or proof of some satisfactory character that its defense of accord and satisfaction is not sham, but a good and meritorious one. This respondent has failed to do. Under such circumstances summary judgment should be granted. The order should be reversed on the law and facts, with ten dollars costs, and action severed and summary judgment ordered in favor of each of the infant appellants for $500 and interest from October 20, 1924, with costs, and action continued in the name of Victoria Killian individually for $500 and interest. All concur, except Clark and Sawyer, JJ., who dissent and vote for affirmance on the ground that the record presents a question of fact whether the infant beneficiaries are bound by the accord and satisfaction and the release, which should be determined by a jury instead of on a motion for summary judgment.