Wenger v. New York Life Insurance

155 Misc. 163, 279 N.Y.S. 72, 1935 N.Y. Misc. LEXIS 1777

Opinion

Per Curiam.

In order for plaintiff to recover it was necessary for him to establish not only that he was totally disabled from following Ms usual occupation, but also that he was totally disabled from followmg any occupation for remuneration or profit wMch under all the circumstances he was physically and mentally fitted to follow. (Garms v. Travelers Ins. Co., 242 App. Div. 230; affd. without opinion, 266 N. Y. 446.) TMs plaintiff failed to do. Moreover, the court’s charge upon request of plaintiff that “ any occupation ” meant Ms usual occupation, constituted prejudicial error.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

All concur; present, Lydon, Frankenthaler and Shientag, JJ.