Opinion
November 23, 1932.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Tenth District.
Gould Wilkie [ Elgin L. McBurney of counsel], for the appellant,
Richard E. Carey, for the respondent.
If the death of the assured was due to illness resulting directly from an operation for a disease peculiar to women, the plaintiff was not entitled to recover upon the policy. The proof adduced by the defendant, consisting of defendant's Exhibit B as explained by the medical testimony, established prima facie that the death was due to an operation for a disease peculiar to women. The only rebutting evidence offered by the plaintiff consisted of the death certificate and medical testimony explaining the meaning of statements contained therein. This certificate was not competent and was erroneously admitted over the objection and exception of defendant's counsel. Not only were the statements contained in the certificate hearsay, but the certificate itself stated that the cause of the assured's death could not be definitely stated. The admission of the death certificate as proof of the cause of death constituted prejudicial error requiring reversal of the judgment appealed from and a new trial.
For the guidance of the court on a retrial we state that the question of whether proper notice under the terms of the policy was given by the assured was, under the circumstances disclosed, correctly decided in favor of the plaintiff as a matter of law and did not have to be submitted to the jury for determination.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, LYDON, LEVY and CALLAHAN, JJ.