Opinion
June 24, 1940.
Action to recover on a policy of insurance for total and permanent disability and to recover a premium paid under protest. Judgment of the City Court of Mount Vernon, in favor of plaintiff, entered on the verdict of a jury, and order in so far as it denies defendant's motion to set aside the verdict and for a new trial, reversed on the law and the facts and a new trial ordered, with costs to abide the event. It was error to instruct the jury that the testimony of the private detectives should be looked upon with suspicion and distrust. While in certain divorce actions the courts have given approval to the action of the trier of the facts in looking at certain testimony with suspicion, such approval has never become a rule of law. ( Yates v. Yates, 211 N.Y. 163.) The jury could properly consider the fact that the witnesses were paid for their services, although there is no presumption that they will not tell the truth. In this case the question of whether or not the plaintiff was engaged in business activities after his alleged disability is rather close, in view of the fact that on that question all plaintiff's witnesses are members of his family, and under such circumstances the error cannot be disregarded, even though no formal exception thereto was taken. Furthermore, in our opinion, the verdict is against the weight of the evidence. Lazansky, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.