We fully agree with Justice O’Malley that the plaintiff cannot recover for premiums paid to the defendant before proof of disability, which by the terms of the policy is made a condition precedent to the waiver of premiums. For similar reasons, we conclude that the plaintiff may not recover for any disability benefits that might have accrued previous to the expiration of six months after receipt by the defendant of proof of disability.
The language of the policy seems to preclude a result which requires the plaintiff to pay premiums to the defendant during the time that it requires the defendant to pay disability benefits to the plaintiff. On the contrary, the policy expressly provides that such benefits shall not commence until six months after receipt of proof of disability. We find no ambiguity in these provisions, which were obviously devised to require the insured to await the expiration of six months after proof of disability before he would become entitled to disability payments. What else could have been intended by the provision that the company would pay “ each month ” disability benefits at the rate of ten dollars for each $1,000 of insurance “ beginning six months after receipt of due proof of permanent total disability? ”
We attach no significance to the provision which obligates the company to make these payments to the insured “ so long as he shall five and suffer such disability.” This means that the payments which begin at the expiration of six months after proof of disability shall continue only “ so long ” as the disability continues.
The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and the complaint dismissed, with costs to the appellant in all courts.
Martin, P. J., and Cohn, J., concur; O’Malley and Townley, JJ., dissent.