Krohn v. Steinlauf 11 A.D.2d 695

*696In an action to recover death, benefits allegedly dne and payable pursuant to the terms of two group life insurance policies, plaintiffs appeal from so much of an order of the Supreme Court, Queens County, dated November 9, 1959, as: (1) denies their motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment against the two defendant insurance companies; and (2) grants said defendants’ cross motions, pursuant to the same rule, to dismiss the complaint. Order insofar as appealed from modified: (a) by striking out its second ordering paragraph granting the cross motions of the defendant insurance companies for summary judgment dismissing the complaint; and (b) by substituting therefor a provision denying such motions. As so modified the order, insofar as appealed from, is affirmed, without costs. In our opinion, the record fails to establish the right of any of the parties hereto to summary judgment. Furthermore, the defense attempted to be interposed by the said defendants was that prior to the death of the insured, the insurance upon his life had been terminated, either by cancellation under the terms of the policies or by mutual agreement between said .defendants and the employer member of the general group. In either ease, the defense consists of new matter which must be pleaded (of. Globe é Rutgers Fire Ins. Co. v. London Mut. Fire Ins. Co., 185 App. Div. 366). The said defendants have failed so to plead. Summary judgment may not be granted to a defendant, dismissing the complaint upon the basis of such a defense unless it is pleaded in the answer (Ziegler v. Mancuso é Alessio, 283 App. Div. 813). Nolan, P. J., Beldoek, Ughetta, Christ and Brennan, JJ., concur. [22 Mise 2d 365.]