Kay v. Travelers Insurance

242 A.D. 798

Opinion

Action to recover on a policy of accident insurance. Judgment dismissing the complaint on the merits at the close of plaintiff’s case on the ground that it affirmatively appeared that the injury was due, at least in part, to a physical infirmity and not solely to accident. Judgment reversed on the law and a new trial granted, costs to appellant to abide the event. In our opinion, it was for the jury to determine whether the plaintiff’s bodily injuries were “ effected directly and independently of all other causes ” by the accident and the injury he received thereby on October 29, 1932. (Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Schwartz v. Commercial Travelers Mutual Association, 132 Misc. 200; affd., 227 App. Div. 711; affd., 254 N. Y. 523.) Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur.