243 A.D. 527 | N.Y. App. Div. | 1934
Judgment of the City Court of Yonkers and order denying motion to set aside verdict and for a new trial reversed on the law and the facts and a new trial ordered, costs to appellant to abide the event. The trial court correctly charged that the plaintiff “ must show affirmatively by a fair preponderance of the evidence that upon the date of the issuance of the policy the insured was in sound health.” (Battah v. Prudential Insurance Co., 151 Misc. 176; Goodfriend v. American Credit Indemnity Co., 217 App. Div. 635, 638; Lee v. Prudential Life Insurance Co., 203 Mass. 299, 301; Greenbaum v. Columbian Nat. Life Ins. Co. of Boston, 62 F. [2d] 56, 58.) We are of'opinion that plaintiff’s case failed to bear the burden of proof imposed upon him by law. Lazansky, P. J., Kapper, Hagarty, Seudder and Davis, JJ., concur.