Phoenix Mutual Line Insurance v. Conway

In our opinion, defendants’ failure to bring an action within the seven-month period after plaintiff notified them of its intention to rescind the policy on the ground of fraud, constituted a waiver of their right to a jury trial (Prudential Ins. Co. of America v. Haney, 163 Misc. 179; American Life Ins. Co. v. Stewart, 300 U. S. 203). We are also of the opinion that under the circumstances here, since the action for rescission was commenced first, it should be tried first (Wolff v. Mutual Life Ins. Co. of New York, 154 Misc. 431, affd. 241 App. Div. 869; New York Life Ins. Co. v. Marcin, 164 Misc. 781). Beldock, P. J., Hill, Rabin and Hopkins, JJ., concur;