Opinion
July 25, 1934.
Appeal from the Municipal Court of New York, Borough of Manhattan, First District.
Tanner, Sillcocks Friend [ Frederick C. Tanner and Leonard M. Gardner of counsel], for the appellant.
Wikler, Gottlieb Wikler [ Harry A. Gottlieb of counsel], for the respondent.
Inasmuch as the insured's doctor advised him to submit to an operation for hernia, and testified that in his opinion a prudent man would have followed that advice, it cannot be held that the condition from which the insured was suffering constituted a total and permanent disability within the meaning of the policy. (See Palloni v. Brooklyn-Manhattan Transit Corp., 215 A.D. 634.)
Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.
All concur; present, CALLAHAN, FRANKENTHALER and SHIENTAG, JJ.