Berkowitz v. Equitable Life Assurance Society of United States

168 Misc. 357, 6 N.Y.S.2d 120, 1938 N.Y. Misc. LEXIS 1805

Opinion

Per Curiam.

The verdict was directed on the theory that the proofs of claim were defective because one of the answers of the physician showed that plaintiff’s condition was not growing worse. If this point was to be made it should have been called to plaintiff’s attention at the time so that, if erroneous, it might have been corrected. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208.) The point could not properly be raised for the first time on the trial as a conclusive objection to plaintiff’s recovery. (See Wachtel v. Equitable Life Ins. Soc., 266 N. Y. 345.) The minutes of the previous trial were improperly admitted in evidence.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Frankenthaler, Shientag and Noonan, JJ.