222   RIGHTS AND POWERS OF INSURER

There is no conflict between them, and each one may be given full effect.

* * * The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff for the amount of premium actually paid.45

Appeal from Supreme Court, Appellate Division, Third Department.

On application by the Metropolitan Life Insurance Company, the predecessor of Albert Conway, as Superintendent of Insurance, refused approval of a formal rider to be attached by petitioner to its life insurance policy, and from an order of the Appellate Division Third Department (226 App. Div. 408, 235 N. Y. S. 501), reversing the determination of the Superintendent of Insurance, Albert Conway, present Superintendent of Insurance, appeals'. Affirmed.

CARDOZO, C. J. Metropolitan Life Insurance Company, the petitioner, applied to the superintendent of insurance, the predecessor of the present appellant, for his approval of a rider to be attached to its policies. The rider submitted was in the following form: "Death as a result of service, travel or flight in any species of air craft, except as a fare-paying passenger, is a risk not assumed under this policy: but, if the insured shall die as a result, directly or indirectly, of such service, travel or flight, the company will pay to the beneficiary the reserve on this policy." The superintendent of insurance refused his approval upon the ground that the proposed rider in his judgment was inconsistent with Insurance Law, § 101, subd. 2 (Consol. Laws, c. 28), which reads into every policy a pro-vision that it "shall be incontestable after it has been in force during the lifetime of the insured for a period of two years from its date of issue except for non-payment of premiums and except for violation of the conditions of the policy relating to military or naval

45 Accord: Howard v. Missouri State Life Ins. Co. (1927, Tex. Civ. App.) 289 S. W. 114; Scales v. Jefferson Standard Life Ins. Co. (1927) 155 Tenn. 412, 295 S. IV. 58, 55 A. L. R. 537; Woodbery v. New York Life Ins. Co. (1927) 129 Misc. 365, 221 N. Y. S. 357. See also 55 A. L. R. 549. Contra: Fore v. New York Life Ins. Co. (1929) 180 Ark. 536, 22 S. W. (2d) 401, 67 A. L. R. 1358.

For excellent discussions of this problem, see the Notes (1930) 39 Yale L. J. 1050 and (1927) 11 Minn. L. Rev. 254. See also 67 A. L. R. 1364.

METROPOLITAN LIFE INS. CO. v. CONWAY.

Court of Appeals of New York, 1930. 252 N. Y. 449, 169 N. E. 642.