Opinion
May 22, 1956
Order granting plaintiff's motion for judgment on the pleadings and dismissing defendant's counterclaim and the judgment entered thereon, unanimously reversed, with costs to the appellant, and the motion denied. The incontestability clause is no bar to the counterclaim insofar as it seeks to reform, rather than to destroy, the policy. The allegations of defendant's mistake in computing the premium chargeable for the insurance, coupled with allegations that plaintiff "knew or should have known" that the premium set forth in the policy was incorrect, create triable issues, if not as to mutual mistake, then certainly as to unilateral mistake on one side and fraud on the other.
Concur — Peck, P.J., Breitel, Botein, Frank and Valente, JJ.