Eisser v. Commercial Travelers Mutual Accident Ass'n of America

247 A.D. 727

Opinion

Judgment reversed on the law and a new trial granted, costs to abide the event. The court erred in charging, at folio 474, that if there was a pre-existing diseased heart which contributed to death, the plaintiff could not recover, because, under the facts of the case, the jury might find that the heart condition did not amount to an active disease at the time plaintiff became ill, but was a dormant condition which was made active by the alleged accident, and, while it then may have contributed to the death of the insured, it was not such a contribution as would prevent plaintiff’s recovery. (Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81.) Young, Carswell, Davis, Adel and Taylor, JJ., concur.