Wenger v. New York Life Insurance Co.

Full title: MORRIS WENGER, Respondent, v. NEW YORK LIFE INSURANCE COMPANY, Appellant

Court: Supreme Court, Appellate Term, First Department

Date published: Mar 21, 1935

155 Misc. 163 (N.Y. App. Term 1935)

279 N.Y.S. 72

Opinion

March 21, 1935.

Appeal from the City Court of New York, County of New York.

Max I. Goldman [ Bernard R. Lieberman of counsel], for the respondent.

PER CURIAM.

In order for plaintiff to recover it was necessary for him to establish not only that he was totally disabled from following his usual occupation, but also that he was totally disabled from following any occupation for remuneration or profit which under all the circumstances he was physically and mentally fitted to follow. ( Garms v. Travelers Ins. Co., 242 A.D. 230; affd. without opinion, 266 N.Y. 446.) This plaintiff failed to do. Moreover, the court's charge upon request of plaintiff that "any occupation" meant his 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.