Opinion
December 28, 1936.
In an action on two industrial life insurance policies, identical in terms, defendant appeals from a judgment for plaintiff. Judgment of the City Court of Yonkers reversed on the law and the complaint dismissed, with costs to the appellant. We are of opinion that the plaintiff failed to sustain the burden of showing, as required by the policies, that the insured was in good health when the policies were issued and had not attended a hospital, and had not been attended by a physician, within two years before the policies were issued, for any serious disease or complaint. ( Matejunas v. Prudential Ins. Co., 244 App. Div. 802. ) We are of opinion, also, that plaintiff failed to show compliance with the binding terms of the policies relating to proofs of claim to be submitted to defendant. Submission of an affidavit by the plaintiff did not constitute such compliance. We do not pass upon the question whether, in view of the identity of the interest of an administrator of the insured under a policy of the kind involved here with the interest of another person named as beneficiary, admissions made in proofs of claim submitted to the insurance company by the beneficiary are prima facie proof against the administrator where he does not adopt or stand on such proofs. The appeal from the order denying appellant's motion to set aside the verdict and for a new trial is dismissed; there is no such order in the record. Lazansky, P.J., Hagarty, Carswell, Davis and Taylor, JJ., concur.