Opinion
April, 1935.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Judgment reversed on the facts and new trial granted, with costs to the appellant to abide the event, on the ground that the finding of the jury that the insured was in sound health on the date of the policy, April 10, 1933, is against the weight of the evidence. Two theories of recovery were submitted to the jury and the general verdict leaves it inconclusive as to the theory upon which the verdict was founded. A reversal must be had if either theory is unsupported by adequate evidence. ( Tryon v. Willbank, 234 App. Div. 335; Cohen v. Jaffe, 218 id. 259; Perham v. Cottle, 98 Misc. 48; affd., 178 App. Div. 949.) All concur, Crosby, J., also voting for reversal on the law on the ground that it was error to permit the jury to find a waiver on the part of the defendant based upon knowledge acquired by the agent at the time of the delivery of the policy which, regardless of the date of policy, must have been after the policy was dated and took effect; except Taylor and Edgcomb, JJ., who dissent and vote for affirmance. (The judgment awarded plaintiff partial recovery of death benefit under three life insurance policies.)