Bomwell v. Commercial Casualty Insurance

243 A.D. 539

Opinion

Judgment reversed on the law and a new trial granted, costs to abide the event. The action was on a policy for disability insurance in which the illness for which liability is claimed followed shortly after the issuance of the policy. It was claimed by the defendant and proof was made that the plaintiff had suffered from illness and had received medical attention during the past five years, contrary to his representation in the application, which was made a part of the policy. When this proof was made, the burden was cast on the plaintiff to show that the illness was of a trivial or minor nature and that the attendance of the physician was to treat him for such slight illness. The rule adopted by the learned trial court placed the burden of proof in respect to illness and medical attention on the defendant. This was error. (Battah v. Prudential Insurance Co., 151 Misc. 176, and cases cited therein; Danker v. Prudential Ins. Co., 243 App. Div. 527.) It is unnecessary to discuss the other questions raised by the appellant on this appeal. Lazansky, P. J., Hagarty, Carswell, Tompkins, and Davis, JJ., concur.