UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 14, 1971.
NEW YORK LIFE INS. CO., ET AL, APPELLEES
Murrah,*fn* Freedman and Van Dusen, Circuit Judges.
Author: Per Curiam
Plaintiff, widow of the insured and beneficiary of the life insurance policy in suit, challenges an October 14, 1969, final district court judgment rescinding such policy delivered by the defendant corporation (shortly after January 20, 1965), entering judgment for the defendant and specifically finding and concluding that the insured, on January 14, 1965, knowingly made false answers to questions 3(c), 4(a), (b) and (c)*fn1 of the Medical Examiner, thereby committing an equitable and legal fraud upon the defendant, which relied upon such fraudulent answers.*fn2
After careful consideration of the record, we have determined that the trial judge's finding of legal fraud was not clearly erroneous and we reject the plaintiff's contention on this issue.*fn3 For this reason, the district court judgment will be affirmed. See Urback v. Metropolitan Life Ins. Co., 130 N.J.L. 210, 32 A. 2d 337 (E. & A. 1943); Gallagher v. New England Mutual Life Ins. Co., 19 N.J. 14, 114 A. 2d 857 (1955); Parker Precision Products Co. v. Metropolitan Life Ins. Co., 407 F.2d 1070, 1073 (3d Cir. 1969), and cases there cited. Furthermore, we agree with defendant that Johnson v. Metropolitan Life Insurance Company, 53 N.J. 423, 251 A. 2d 257, 263 (1969), concerned the right to rescind for false statements in an application for a health and accident policy after the incontestable clause became effective in view of the terms of N.J.S.A. 17:38-13.2(A) and is inapplicable to this case, where the one-year incontestable clause had not become operative. See Russ v. Metropolitan Life Insurance Company, 112 N. J. Super. 265, 270 A. 2d 759 (1970) ; Nardiello v. North American Life Ins. Co. of Chicago, Letter Opinion of 10/2/69 (Docket No. C1664-68, Superior Court of New Jersey).