Kashdan v. Metropolitan Life Insurance

Lydon, J.

(dissenting). I am unable to concur in the result reached by a majority of the court.

As I view the case, the policies are not susceptible of any other construction than that all their benefits are payable only to the insured, unless the company elects to pay them to others under the facility of payment clauses. Hence, the supposed practical construction of the policy is irrelevant.

Assuming that in 1931 the company did elect to make payment under the facility of payment clauses (although its check was drawn to the joint order of the mother and one of the insured), that intention was frustrated by the action of the father, who wrongfully procured payment to himself. I do not understand on what theory that election could be held irrevocable and so support the present action brought in 1936. No such theory was suggested in the complaint or on the trial or in the briefs of counsel.

So much of the judgment as is in favor of plaintiff against the insurance company should be reversed and the complaint as to it dismissed on the merits, with costs.