New York Life Insurance v. White

260 A.D. 901, 23 N.Y.S.2d 57, 1940 N.Y. App. Div. LEXIS 5284

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 1940
• Status: Published

Opinion

Judgment in so far as it relates to the first and second causes of action alleged in the complaint affirmed, without costs, and judgment in so far as it relates to the third cause of action alleged in the complaint reversed on the law and facts, without costs, and complaint in so far as it relates to the third cause of action dismissed, without costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: Exhibit No. 14 was only pertinent for the purpose of impeaching the testimony of the witness O’Brien. (Civ. Prac, Act. § 343-a; Matter of Roge v. Valentine, 280 N. Y. 268.) Unless such exhibit could have been considered as evidence in chief, the record is barren of proof sufficient to sustain the decision and judgment therein in so far as the third cause of action is concerned. In regard to the first and second causes of action there was abundant proof (outside of Exhibit No. 14) to sustain the decision and judgment. All concur, except Crosby, P. J., who dissents as to the reversal of the judgment in so far as it relates to the third cause of action and votes for affirmance of the entire judgment. (The judgment cancels an insurance policy and certain disability and double indemnity agreements.) Present — Crosby, P. J., Cunningham, Taylor, Harris and MeCurn, JJ.