131 N.Y.S. 588 | N.Y. App. Div. | 1911
The plaintiff has had two previous judgments, both of which have been reversed by this court, and now for a - third time she has been awarded judgment. With each new trial the plaintiff has made an effort to meet the requirements of the opinion of this court, and in the present instance has succeeded in getting within the letter of the rulé laid down upon the last appeal (141 App. Div. 713, 715). We are of the opinion, however, that the case still lacks the essential elements to justify the judgment. Among the conditions to be found in the policy involved in this action is one that, “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 * * * disease * * * of the kidneys.” The defendant had a right to determine the condition on which it would write this policy of insurance, and it clearly appears from the evidence in this case that the insured was confined to a hospital, where he “was treated for a disease of the kidneys, just prior to. the taking out of this policy, and it appears from the evidence that he came to his death by reason of this same character of disease within a short time after the policy was delivered. The case- has already been sufficiently discussed in all its bearings, and the judgment 'ought not to stand. The judgment appealed from should be reversed and a new trial ordered, costs to abide the event. Jenks, P. J.,.Burr, Thomas, Carr and Woodward, JJ., concurred. Judgment of the Municipal Court reversed and' new trial ordered, costs to abide the event.
