Hyperlawhypertext legal database Clemans v. Supreme Assembly Royal Society of Good Fellows 21 N.Y.S. 348

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Clemans v. Supreme Assembly Royal Society of Good Fellows

21 N.Y.S. 348 Court N.Y. Gen. Term Decision date 1892-12-12 English

Decision Majority — BARNARD, P. J. · Concurring — PRATT, J.,

Contents
p. 348
CLEMANS v. SUPREME ASSEMBLY ROYAL SOCIETY OF GOOD FELLOWS.
(Supreme Court, General Term, Second Department.
December 12, 1892.)

Headnote

Review on Appeal—Conflicting! Evidence. A verdict of the jury, if supported by the evidence, will not be disturbed-on appeal.
Appeal from circuit court, Dutchess county.
Action by Mary Clemans against Supreme Assembly Royal Society of Good Fellows to recover on a life insurance policy taken out by Patrick . Durnan in defendant’s society. There was a judgment for plaintiff, and an order denying a new trial, and defendant appeals. Affirmed.
For former reports, see 16 N. Y. Supp. 378 , reversed by 30 N. E.. Rep. 496 .
Argued before BARNARD, P. J., and PRATT, J.
W. R. Spooner, for appellant.
Wood & Morschauser, for respondent.

The proof of the age of Patrick Durnan was conflicting. The jury has found that there was no misrepresentation as to the-age of the deceased. . The proof was sufficient, if credited by the jury,, to' establish that Simon Jacobs, the agent of the defendant, fraudulently concealed from the deceased the fact that he had been rejected by the Prudential Life Insurance Company as a member. Jacobs was the agent who made the application to the Prudential Company. The verdict of the jury is in favor of this fact, and is well supported by the evidence, and such finding is sufficient to free the deceased from any misrepresentation in that respect. Clemans v. Supreme Assembly, 131 N. Y. 485 , 30 N. E. Rep. 496 . The judgment and order denying new-trial should be affirmed, with costs.

(concurring.) The questions of fact were fairly left to-the jury, and the testimony sustains the verdict. There is no ground upon which the court can interfere. The circuit judge charged the jury in accordance with the law as declared by the court of appeals upon the-first appeal. Judgment affirmed, with costs.

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