Angione v. Rochester Savings Bank — 34 N.Y.2d 621

Majority

p. 621

Howard Angione, as Executor of Genevieve Angione, Deceased, Appellant-Respondent, v. Rochester Savings Bank, Respondent-Appellant.

Argued February 19, 1974;

decided March 27, 1974.

p. 622

Gordon J. Lipson and Theodore S. Kantor for appellant-respondent.

William L. Dorr for respondent-appellant.

Memorandum. We agree with the Appellate Division that it was proper to remand this case to the trial court to determine if the mailing of the premium check occurred before or after decedent’s visit to the doctors on that same day. Although decedent was not told that he definitely had a cancerous lesion on that day, he was told by the first doctor that the lesion could be very serious and by the second doctor that a biopsy would be required.

Under these circumstances, and if decedent knew of the possible health problem before he transmitted the premium check, he was under an obligation to impart this knowledge to the insurance company.

Defendant’s appeal should be dismissed on the ground that it was not aggrieved by the Appellate Division order granting a new trial here reviewed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in memorandum.

On plaintiff’s appeal: Judgment affirmed, without costs.

On defendant’s appeal: Appeal dismissed, without costs.