Majority
p. 443Charles Elenberg, Respondent, v. Metropolitan Life Insurance Company, Appellant. Charles Elenberg, Respondent, v. The Travelers Insurance Company, Appellant. First Department, June 22, 1937.
Herbert F. Garrick of counsel [Leonard M. Gardner with him on the brief; Tanner, Sillcocks & Friend, attorneys], for the appellant Metropolitan Life Insurance Company.
William A. Roe of counsel [Louis P. Galli with him on the brief; Moran, Galli & McGlinn, attorneys], for the appellant The Travelers Insurance Company.
David Goldstein of counsel [Thomas G. Frost with him on the brief; Goldstein & Goldstein, attorneys], for the respondent.
While the evidence disclosed that the plaintiff, a real estate operator, was suffering from a disease of the heart which limited his activities to some extent, he failed to establish by a fair preponderance of evidence that such disease totally disabled him within the definition contained in either policy.
The judgments should be reversed, with costs, and the complaints dismissed, with costs.
Present •— Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.
Judgments unanimously reversed, with costs, and complaints dismissed, with costs.