6 N.Y.S. 821 | N.Y. Sup. Ct. | 1889
We find no error in this record which calls for a reversal of the judgment. The action was brought to recover $1,000, upon a certificate issued by the defendant to Mina Grossman for the benefit of the plaintiff, her husband, in case of her death. The certificate declared that Mina Grossman, a member of the Oriental Lodge of the Order of Knights and Ladies of Honor, was entitled to all the rights and privileges of membership in the order, and to participate in its relief fund to the amount of $1,000, which sum at her death should be paid to her husband, Fritz Grossman. The complaint alleged that on February 7, 1885, the instrument was executed and delivered for a valuable consideration to the wife of the plaintiff, for the plain
The first ruling of which the appellant complains is the refusal of the court to admit in evidence the minutes of the meeting of the Oriental Lodge at the time Mrs. Grossman was admitted to membership. The exclusion of these minutes was of no consequence, in view of the fact that the circumstances attending the admission of the deceased into the order were fully shown by the subsequent testimony of one Hermann Gerth, the secretary of the lodge.
The next exception argued in the brief for the appellant relates to the testimony of Charlotta List. This lady testified that she had known Mrs. Gross-man four or five years prior to her death, and remembered her being in the German Hospital, but could not say when it was, except that it was long ago. Two months after having visited her i n the hospital, the witness saw Mrs. Gross-man in the street, and talked with her about her health. The defendant sought to prove what Mrs. Grossman said on that occasion, but the evidence was objected to and excluded. There was no error in this ruling. The testimony of the witness indicated that the conversation to which she referred had taken place some years before Mrs. Grossman’s death. She spoke of the time as “long ago,” just after having said that she had known the deceased four or five years. To render admissible the declarations of one whose life has been insured for the benefit of another, as to his state of health, made prior to the examination by the physician of the insurer, such declarations must have been made at a period not remote from the time of examination. Swift v. Insurance Co., 63 N. Y. 186, 191. The admissions sought to be proved in the case at bar were too far distant in point of time.. If, on the other hand, it is claimed that the interview occurred after the issue of the certificate, the declarations of the deceased were equally inadmissible; The acts or declarations of a person whose life is insured for the benefit of another, where those acts or declarations occur after the policy has been issued, and are not violative of any of its conditions, cannot be proved to bind the beneficiary. Fitch v. Insurance Co., 59 N. Y. 557, 573.
Two physicians, Dr. Joseph Holl and Dr. Gustavos Schlegel, were called by the defendant to testify as to what occurred at the German Hospital when Mrs. Grossman was a patient there. Dr. Holl saw her at the hospital in the summer of 1885, in company with a Dr. Wolf, who was the attending physician. The defendant endeavored to prove by him what he then found to be the condition of the lady’s health, but the court held the witness to be incompetent to testify on this subject, under section 834 of the Code of Civil Procedure. The correctness of this ruling is assailed on the ground that Dr, Holl was neither the attending physician nor his assistant, and that no relation of doctor and patient existed between him and the deceased. The testimony of the doctor as to his functions at the time he saw Mrs. Grossman is
Van Brunt, P. J., concurs.