Breitbart v. Equitable Life Assurance Society

Opinion Per Curiam.

The exclusion of defendant’s letter of July 12, 1943, offered for the purpose of showing waiver of the requirement of the policy that notice be given within a definite period, constituted error (7 Couch’s Cyclopedia of Insurance Law, § 1578; see Concordia Ins. Co. v. School Dist. No. 98, 40 F. 2d 379, affd. 282 U. S. 545). Failure of the plaintiff to allege a waiver is not fatal in the light of defendant’s failure to object to evidence concerning waiver on the ground that it was not within the issues tendered by the pleadings. (Novak v. Melnyk, 224 App. Div. 492, affd. 252…