Opinion
February, 1936.
Present — Lazansky, P.J., Young, Carswell, Davis and Adel, JJ.
Action brought in the Municipal Court of the City of New York, Borough of Brooklyn, to recover disability benefits under the provisions of a life and endowment policy. The Municipal Court made two orders — one denying plaintiff's motion for summary judgment, and the other granting defendant's motion for the same relief. It also entered a judgment dismissing the complaint on the merits. The plaintiff appealed to the Appellate Term, which reversed the orders and judgment, denied defendant's motion and granted plaintiff's motion. From the order of the Appellate Term the defendant appeals to this court. The provisions in respect to the payment of disability before age sixty and after age sixty were ambiguous. The plaintiff suffered disability before he reached the age of sixty but at a time after the anniversary of the policy nearest to his sixtieth birthday. Under the construction given by the appellant insurance company, he would not receive disability benefits, but would only be entitled to the waiver of premiums which the policy provided should occur "after attaining age sixty." If we adopt this construction literally, there would be a period during which the plaintiff would not be protected at all — from February 1 to July 14, 1934. The language of the policy is that of the company, and if the meaning thereof is doubtful or ambiguous it must be construed favorably to the insured. ( Marshall v. Com. Travelers' Mut. Acc. Assn., 170 N.Y. 434, 438, and Nellis v. Western Life Indemnity Co., 207 id. 320.) Order of Appellate Term unanimously affirmed, with costs.