291 N.Y. 90 | NY | 1943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *93 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *94 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *95 Judgment modified by reversing as to Policy No. 3,696,772, and as so modified, the judgment is affirmed with costs to the appellant.
On the application for reinstatement of the above numbered policy, defendant failed to disclose that he had consulted physicians once for constipation and three or four times for a cold. Such failure did not constitute "a misrepresentation, material or otherwise." (Geer v. Union Mut. Life Ins. Co.,
The insured is still alive — ten years after making the application for reinstatement. The constipation and colds were not the cause of his disability. The facts which were not disclosed were not such as might reasonably affect the choice of the insurance company as to whether to accept or reject the application (Geer v. Union Mut. Life Ins. Co., supra) nor did the failure to disclose them materially increase the risk. (Cf. Insurance Law, § 150.)
The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs to the appellant.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, DESMOND and THACHER, JJ., concur; LEWIS, J., taking no part.
Judgment accordingly. *98
