Campanaro v. Prudential Insurance Co. of America

235 A.D. 702

Opinion

Judgment and order of the City Court of Yonkers reversed on the law and the facts and a new trial ordered, costs to appellant to abide the event, on the ground that the prima facie ease made by the plaintiff, by the offering of the policy in evidence, was overcome when substantial evidence was offered by the defendant to the effect that the age of the insured was eleven years greater than that stated in the policy. (Potts v. Pardee, 220 N. Y. 431, 433.) The plaintiff offered no further evidence, as she might have done by showing the age of the insured by competent witnesses and by information acquired in the family prior to the insured’s taking out the policy. (Wigm. Ev. [2d ed.] §§ 222, 660; Jones Ev. [1913] § 300; Commonwealth v. O’Brien, 134 Mass. 198; Winter v. State, 123 Ala. 1; St. Louis S. W. R. Co. v. Bowles, 32 Tex. Civ. App. 118; L. R. A. 1918A, 685, note 168.) Evidence on this subject, in order to rebut documentary evidence, must be reasonably strong and convincing. (Hartshorn v. Metropolitan Life Ins. Co., 55 App. Div. 471; Bowen v. Preferred Accident Ins. Co., 68 id. 342.) Lazansky, P. J., Young, Carswell, Tompkins and Davis, JJ., concur.