Opinion
May 27, 1938.
Appeal from Supreme Court of New York County.
Peter C. Mann of counsel [ James D. Ewing with him on the brief; Alexander Green, attorneys], for the appellant.
David Goldstein of counsel [ Thomas Gold Frost with him on the brief; Goldstein Goldstein, attorneys], for the respondent.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
Judgment unanimously reversed, with costs, and the complaint dismissed, with costs. Settle order on notice.
The finding of the trial judge that the insured had not suffered from heart disease previous to the application for the policies and that, accordingly, the representation in paragraph 6 of the application, to the effect that the insured had never had or been treated for any disease or disturbance of the heart, was true, is against the weight of the evidence. Furthermore, the uncontradicted testimony of Dr. Silbert, a specialist in diseases of the heart, so far as competent ( Klein v. Prudential Ins. Co., 221 N.Y. 449), establishes that he was consulted by the insured within the period of five years referred to in paragraph 9 of the application for the policy. It was also established by Dr. Silbert's prescription that on the occasion of the consultation he prescribed for the insured metaphyllin tablets, a medicine used for the treatment of diseases of the heart. This misrepresentation of the insured would alone require the reversal of the judgment in favor of the plaintiff and the dismissal of the complaint. ( Travelers Ins. Co. v. Pomerantz, 246 N.Y. 63; Anderson v. AEtna Life Ins. Co., 265 id. 376.)
The judgment should be reversed, with costs, and the complaint dismissed, with costs.