Opinion
November 10, 1930.
Appeal from the Municipal Court, Borough of Manhattan, Fourth District.
Weinberg Weinberg, for the appellant.
Frederick C. Tanner [ Thomas McCall of counsel], for the respondent.
The only misrepresentations asserted in the answer were the alleged false answers to question 4 of the application.
The physician's certificate attached to proof of death related solely to the doctor's "prescribing for or attending" the deceased for certain "diseases." The testimony given by the certifying physician on the trial did not show that deceased either had or had been treated for a "disease" of the bladder or prostate or heart "trouble." It merely showed that incidental to other treatment the doctor found a slightly enlarged prostate gland such as every man of the age of deceased had. This, of course, did not show a disease of that organ. Nor could a "slightly enlarged heart — nothing unusual" be deemed a heart "trouble" without further proof on the subject.
Judgment reversed, with thirty dollars costs, and judgment directed for plaintiff for the amount demanded in the complaint, with interest and costs.
All concur; present, LYDON, LEVY and CALLAHAN, JJ.