This is an appeal from an order made by the chief justice in striking out as sham the answer of the defendant and ordering a summary judgment to be entered against the defendant for the sum of $1,142.45. The suit was brought to recover the sum of $2,500, the amount of two life insurance policies; one for $1,000 dated January 20th, 1921, and one for $1,500 dated August 18th, 1922. The policies were issued to Selig Skolnik payable to Morris Skolnik, the plaintiff, as beneficiary. Selig Skilnik died January 13th, 1928. The premiums were paid up to and including the date of his death, viz., January 13th, 1928. The answer was, that at the time the applications for the policies were made, the assured stated his age at his nearest birthday to be fifty-three and fifty-five years, whereas, at those times, his actual age was sixty-three and sixty-five years, at his nearest birthday, the defendant, under the terms of the policies, was obligated to make payments to the plaintiff on one policy, in the sum of $582.81, and on the other policy, in the sum of $822.64, total $1,405.45. On notice a rule was entered by the chief justice ordering a final judgment for the plaintiff for the sum of $1,405.45, the amount admitted by the defendant in its answer to be due. Subsequently, it appearing by affidavits filed, that the defense made by the answer of the defendant company to the balance of the plaintiff's claim is sham, after *Page 652 due notice the chief justice struck out the defendant's answer, as sham, and ordered a final judgment for the balance of the plaintiff's claim of $1,142.45. With the conclusion directing an order for judgment made by the chief justice we concur. The judgment of the Supreme Court is therefore affirmed.
The substance of the affidavits is to the effect that the defendant company had information tending to show that the insured Selig Skolnik was about ten years older than his application for the policies had stated. The defendant company had this information in 1923, and at that time requested a return of the policies, which was refused, from that time and up to and including January 13th, 1928, the date of Selig Skolnik's death, the defendant company continued to receive the premiums upon the policies paid by the beneficiary. At no time thereafter did the defendant company refuse to accept such premiums. As stated, the judgment of the Supreme Court is affirmed.
For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, BODINE, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 15.
For reversal — None. *Page 653