Williams v. John Hancock Mutual Life Insurance

246 A.D. 891 | N.Y. App. Div. | 1936

Motion for a reargument denied, with ten dollars costs. Memorandum. The pleadings tendered the issue — which was thoroughly tried — whether the plaintiff employee was totally disabled by sickness or disease and would be continuously prevented thereby from performing any and every duty pertaining to his occupation and presumably, during his lifetime, would be prevented from pursuing any occupation for wages or profit. In our determination of the appeal to which this motion is addressed, we considered the letters, plaintiff’s Exhibits 9 and 10, in connection with the previous letters, defendant’s Exhibits B and C. The purpose of this correspondence was to avoid litigation. Failing in that purpose and in view of the issue of the assured’s total disability, which the pleadings tendered, we did not consider the statements made by the insurer in the course of such negotiations, as competent admissions of liability. (Gutkind v. Lueders & Co., 267 N. Y. 320, 329.) Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.