Opinion
May 29, 1940.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and McCurn, JJ.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Plaintiff had the burden of proving that decedent was in sound health on the effective date of the policies. ( Skripko v. John Hancock Mut. Life Ins. Co., 249 App. Div. 783; Matejunas v. Prudential Ins. Co., 244 id. 802.) The policies were dated December 11, 1935. The insured died on December 17, 1935. The attending physician's affidavit submitted by plaintiff as part of her proofs of death disclosed that decedent's health was impaired on December 9, 1935, and that he was under treatment for the disease which caused his death from December 10, 1935. "Of course it is not conclusive against her but is binding until corrected or explained." ( Rudolph v. John Hancock Mut. Life Ins. Co., 251 N.Y. 208, 214.) Evidence of decedent's physical appearance prior to the date of the policies is not sufficient to overcome the proof furnished by the attending physician's affidavit. ( Kipp v. Metropolitan Life Ins. Co., 41 App. Div. 298, 301.) The finding that the insured was in good health on the 11th day of December, 1935, is against the weight of the evidence. All concur, except Cunningham and Dowling, JJ., who dissent and vote for affirmance. (The judgment is for plaintiff in an action under life insurance policies. The order denies a motion for a new trial.)