Opinion
May 10, 1950.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The industrial life insurance policy in suit contains an avoidance clause in the form permitted by paragraph (b) of subdivision 3 of section 163 Ins. of the Insurance Law. The policy was issued on October 23, 1946, and insured died on November 7, 1946. The insurer declared the policy void and refused to pay the face value of the policy, but tendered return of the amount of premiums paid thereon. The principal issue submitted to the jury was whether defendant-appellant had waived or was estopped from invoking the avoidance provisions of the policy relating to treatment of the insured, plaintiff's wife, by a physician within two years prior to its issuance. In our view of the record the plaintiff failed to establish either waiver or estoppel. (See Nicotra v. John Hancock Mut. Life Ins. Co., 268 App. Div. 100 4, and Fusco v. Metropolitan Life Ins. Co., 264 App. Div. 876. ) Also, we think that it was error to permit the plaintiff over defendant's objection to testify that defendant had issued to him a similar policy on his own life despite his disclosure that he was then suffering from a chronic cardiac condition. All concur. (The judgment is for plaintiff in an action under a life insurance policy. The order denies a motion for a new trial.)