Opinion
September 29, 1939.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Taylor, JJ. Motion for resettlement of order denied. On the court's own motion, the decision of this court handed down June 30, 1939 [ ante, p. 1012], is hereby amended to read as follows: Judgment in favor of the plaintiff in an action brought to recover disability benefits pursuant to the terms of certain policies of life insurance issued by the defendant, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. In view of the ocular demonstration of the plaintiff's physical activities and the uncontradicted evidence in reference to such activities, the medical testimony offered by the plaintiff to the effect that he was permanently disabled is incredible as a matter of law. In any event in our opinion the plaintiff failed to establish by a fair preponderance of evidence that the disease from which he alleged he was suffering totally disabled him within the definition contained in any of the policies. ( Waldman v. Mutual Life Insurance Co. of New York, 252 App. Div. 448; Prudential Ins. Co. of America v. Harris, 254 Ky. 23; 70 S.W. [2d] 949; Elenberg v. Metropolitan Life Ins. Co., 251 App. Div. 443; Luftig v. Travelers Insurance Company [ Nos. 1, 2], 253 id. 538.) Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.
Motion for resettlement of order of reversal so as to recite that reversal is on the law and the facts and not on the law alone referred to the court that rendered the decision on the appeal.