Cinquino v. Metropolitan Life Insurance

239 A.D. 765

Opinion

Judgment and order reversed on the law and the facts, with costs, and complaint dismissed, with costs, on the ground that the finding of the jury that the condition of the policy was not violated was contrary to and against the weight of the evidence. We find the record upon this appeal different from that which was before us on the former appeal (235 App. Div. 104). It now appears that the insured underwent an operation at the hospital within the period referred to in the policy in the clause to the effect that the policy should be void if “ the insured has within two years * * * been attended by a physician for any serious disease or complaint.” At the operation there were present not only the operating surgeon but two other physicians and during the period at the hospital she was attended by physicians several times a day. These facts are undisputed and establish conclusively a breach of the conditions of the policy. All concur.