Majority
p. 439Hyman Finkelstein, Respondent, v. Metropolitan Life Insurance Company, Appellant.[1] Supreme Court, Appellate Term, First Department, July 25, 1934.
Tanner, Sillcocks & Friend [Frederick C. Tanner and Leonard M. Gardner of counsel], for the appellant.
Wikler, Gottlieb & Wikler [Harry A. Gottlieb of counsel], for the respondent.
Inasmuch as the insured’s doctor advised him to submit to an operation for hernia, and testified that in his opinion a prudent man would have followed that advice, it cannot be held
p. 440
that the condition from which the insured was suffering constituted a total and permanent disability within the meaning of the policy. (See Palloni v. Brooklyn-Manhattan Transit ,Corp., 215 App. Div. 634 .)
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur; present, Callahan, Frankenthaler and Shientag, JJ.