BENNETT v. EQUITABLE ASSUR. SOC

Full title: EVA BENNETT, Appellant, v. EQUITABLE LIFE ASSURANCE SOCIETY OF UNITED…

Court: Supreme Court, Appellate Term, First Department

Date published: Jul 5, 1939

14 Misc. 2d 759 (N.Y. App. Term 1939)

13 N.Y.S.2d 540

Opinion

July 5, 1939

Appeal from the Municipal Court of the City of New York, Borough of Manhattan, THOMAS J. WHALEN, J.

Alexander Green ( James D. Ewing of counsel), for appellant.

Ralph Bernstein for respondent.

Per Curiam.

The insured's death did not occur in consequence of bodily injury effected solely through external, violent and accidental means. Mansbacher v. Prudential Ins. Co. ( 273 N.Y. 140) and Berkowitz v. New York Life Ins. Co. ( 256 App. Div. 324) are not here controlling, as in those cases the causes were trivial and were followed by some unforeseen, unexpected, extraordinary, and unlooked-for mishap. Here, however, death ensued as the result of postoperative pulmonary embolism. In such event, the cause was neither trivial nor the result unforeseen.

The judgment should be reversed, with $30 costs, and complaint dismissed on the merits, with costs.

Concur — FRANKENTHALER, SHIENTAG and NOONAN, JJ.

Judgment reversed, etc.