Maiorana v. New York Life Insurance — 220 A.D. 815

Majority

p. 815

Antonio Maiorana, Respondent, v. New York Life Insurance Company, Appellant.

Headnote

Insurance — life insurance — warranties —• evidence shows insured was suffering from tuberculosis at time she represented she had never had disease — error to exclude testimony of witness who examined sputum.

Appeal from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the New York county clerk’s office on April 12, 1926, reversing an order of the City Court of the City of New York, which set aside a verdict in favor of the plaintiff, and reinstating the verdict.

The evidence here showed unmistakably that the plaintiff’s wife had been suffering from tuberculosis and was an inmate of a tuberculosis sanitarium at the very time as to which she warranted and represented that she had never had tuberculosis. Moreover it was error to exclude the testimony of the witness who examined the sputum of the decedent. For these reasons we think the order of the trial justice setting aside this verdict was correct. The determination of the Appellate Term should, therefore, be reversed and the order of the City Court affirmed, with costs to the appellant in this court and in the Appellate Term. Present — Finch, Merrell, McAvoy, Martin and Proskauer, JJ. Determination of the Appellate Term reversed and the order of the City Courtaffirméd, with costs to the appellant in this court and in the Appellate Term.