22 A.D.2d 768 | N.Y. App. Div. | 1964
Determination of the Appellate Term affirming the judgment of the Municipal Court, First District, in favor of the third-party plaintiff in the sum of $504.06 after a nonjury trial, unanimously reversed, on the law and on the facts, with $50 costs to third-party defendant-appellant, and the complaint dismissed. The issue in this ease is whether the third-party defendant-appellant Associated Hospital Service of New York (AHS) is obligated under its family policy issued to the third-party plaintiff to pay the hospital bill incurred by his wife. AHS denies liability by reason of the following exclusion clause in its policy: “ article rv —'exclusions 1. Hospital Service shall not be provided for: * * * hospital admissions primarily for diagnostic X-ray or laboratory examinations or other diagnostic studies ”, The third-party plaintiff has failed to establish that the admission was not primarily for diagnostic studies and that the hospitalization accorded his wife was not barred by the exclusion provision. (Whitlatch v. Fidelity & Cas. Co. of New York, 149 N. Y. 45; Sagorsky v. Malyon, 4 A D 2d 1016; Klar v. Associated Hosp. Serv. of N. Y., 24 Misc 2d 559; Tasman v. Associated Hosp. Serv. of N. Y., 19 Misc 2d 809.) Under the provisions of CPLR 5522, we should, on the appeal from a judgment rendered by the court without a jury, unless we affirm, grant the judgment which the court below ought to have granted. (Malave v. MVAIC, 19 A D 2d 606; Bruno v. Kosnac, 13 A D 2d 650; see former Civ. Prac. Act, § 584, subd. 2; McKinney’s Cons. Laws of N. Y., Book 7B, rule 5522, pp. 341-343; 7 Weinstein-Korn-Miller, New York Civil Practice, par. 5522.02.) Concur — Breitel, J. P., Rabin, Valente, McNally and Steuer, JJ.
