112 N.Y.S. 1095 | N.Y. App. Term. | 1908
Among the conditions in the policy of insurance upon which this action is brought is found one which reads:
“Unless otherwise stated in the blank space below in a waiver signed by the secretary, this policy is void if the insured before its date * * * has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver or kidneys.”
It is also provided therein that the contents of the proofs of death “shall be evidence of the facts therein stated in behalf of, but not against, the company.” From the proofs of death introduced in evidence it appears that the insured was attended by a physician in 1905 and 1906, prior to the date of this policy, for nephritis, and that the chief or primary cause of his death was delirium tremens, and the contributing or secondary cause chronic nephritis; the claimant certifying to Bright’s disease as the cause of death. This evidence, not contradicted, entitled the defendant to prevail (Kipp v. Metropolitan Life Ins. Co., 41 App. Div. 298, 58 N. Y. Supp. 494; Howard v. Metropolitan Life Ins. Co., 18 Misc. Rep. 74, 41 N. Y. Supp. 33), as there is found in the policy no written waiver of the violated condition, nor does the evidence disclose knowledge of the fact on the part of the defendant upon which to base an estoppel. The judgment should therefore be reversed, and a new trial ordered.
Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.