MacKay v. Metropolitan Life Insurance

255 A.D. 924, 8 N.Y.S.2d 776, 1938 N.Y. App. Div. LEXIS 5866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1938
• Status: Published

Opinion

Judgment and order denying motion for a new trial affirmed, with costs. Memorandum: Giving to the policy provisions in question the “ fairly liberal construction ” to which they are entitled (Greenwich Bank v. Hartford Fire Ins. Co., 250 N. Y. 116, 130-131), we conclude that the trial court properly denied defendant’s motion for a nonsuit and that the jury correctly determined the questions of fact whether plaintiff sustained a total and irrecoverable loss of sight of one eye within ninety days of the accident and whether under the terms of the policy plaintiff gave to defendant written notice of injury and furnished affirmative proof of loss “ as soon as was reasonably possible ” under existing circumstances. All concur except Sears, P. J., who dissents and votes for reversal on the law and for dismissal of the complaint on the ground that the insured failed to furnish affirmative proof of loss within ninety days after the date of the loss within the terms of the policy. (See Maryland Casualty Co. v. Massey, 38 F. [2d] 724.) (The judgment is for plaintiff in an action under an accident insurance policy. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.