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AUSTRIAN v. EQUITABLE LIFE

48 A.D.2d 144 (1975)

Carl J. Austrian, Jr., et al., as Executors of Carl J. Austrian, Deceased, Appellants, v. Equitable Life Assurance Society of the United States, Respondent

Appellate Division of the Supreme Court of the State of New York, First Department.

May 22, 1975

Attorney(s) appearing for the Case

William Klein, II, of counsel (Osmond K. Fraenkel with him on the brief; Austrian, Lance & Stewart, P.C., attorneys), for appellants.

Michael W. Brody of counsel (Werner Weinstock, attorney), for respondent.

LUPIANO, J., dissents in an opinion and CAPOZZOLI, J., concurs in dissent of LUPIANO, J., and would also affirm for reasons stated by SAMUEL ROSENBERG, J., at Trial Term.

MURPHY, J.

The instant action was brought to recover an aggregate sum of $11,500 in double indemnity benefits and accrued dividends alleged to be due under two identical converted policies of ordinary life insurance issued by defendant in 1928 and 1930 in the original face amounts of $10,000 and $5,000, respectively.

The essential facts (including decedent's death by accidental means) are undisputed...

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