Lampke v. Metropolitan Life Insurance

251 A.D. 875, 297 N.Y.S. 901, 1937 N.Y. App. Div. LEXIS 8062

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1937
• Status: Published

Opinion

Judgment and order affirmed, with costs. Memorandum: The question of knowledge of the company of the ill-health, previous disease and treatment by a physician on which to base waiver or estoppel was one of fact depending on statements of the insured to defendant’s soliciting agent and to defendant’s examining physician. (Bible v. John Hancock Mutual Life Ins. Co., 256 N. Y. 458; Salamida v. John Hancock Mutual Life Ins. Co., 148 Misc. 702; affd., 241 App. Div. 636.) As the credibility of defendant’s examining physician was for the jury, the jury could have found that there was no concealment of insured’s condition from the examining physician. This distinguishes the case of Fortunato v. Metropolitan Life Ins. Co. (160 Misc. 918; affd., 248 App. Div. 680) for there a written statement of the insured was produced showing a concealment of the applicant's condition of health from the examining physician of the defendant. All concur. (The judgment is for plaintiff in an action under two life insurance policies. The order denies a motion for a new trial on the minutes.) Present — Sears, P. J., Edgcomb, Crosby, Cunningham and Taylor, JJ.