p. 106SCHNEPS v. FIDELITY & CASUALTY CO. OF NEW YORK.(Supreme Court, Appellate Term.Headnote
Insurance—Accident—Policy—Construction.Where an accident policy provided that insurer would pay plaintiff a specified sum per week for the period of disability during which he should be necessarily confined to the house, there could be no recovery on such provision unless it appeared that there was not only disability, but necessary confinement to the house, for a week.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 1314.] Dowling, J., dissenting.
Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
Action by Joseph Schneps against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.
Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.Nadal, Carrere & Jones, for appellant
Howard C. Taylor, for respondent.
The policy provided that defendant would pay plaintiff $25 a week for the period of disability during which “he shall be necessarily confined to the house.” It does not appear that it was on account of disability alone that the weekly payment was to be made. It was conditioned on disability and necessary confinement to the house for a week. There was no evidence, that the plaintiff was necessarily confined to the house for a week. If his presence in this city would have cured him, it would not follow that he would be necessarily confined to the house, and neither would it follow if his presence in the White Mountains cured him. In this view, it is unnecessary to examine the other questions presented.
p. 107The judgment will be reversed, and a new trial ordered, with costs to appellant to abide the event.
GILDERSLEEVE and DUGRO, JJ., concur. DOWLING, J., dissents.