Birnbaum v. Equitable Life Assurance Society of the United States

— Judgment in favor of plaintiff for sums representing monthly installments for disability accruing under policies of insurance issued by the defendant, unanimously affirmed, with costs. The alleged misrepresentation arising out of the 1923 visit to Dr. Gordon to the effect that the insured had never had or been treated for heart disease and abnormal blood pressure, as alleged in the answer, could be such only if the insured knew or had reason to know that the contrary was the fact. The questions sought the insured’s knowledge and could not reasonably be construed as calling for information which an applicant could not be expected to furnish. (See Geer v. Union Mutual Life Ins. Co., 273 N. Y. 261, 267.) It is undisputed that the insured was not informed of the doctor’s findings which might lead to a conclusion that the plaintiff was suffering from such ailments. In any event, a question of fact was presented as to whether or not the plaintiff was afflicted with heart disease and abnormal blood pressure or had been treated therefor. As to the 1926 visit, within the five-year period contemplated in the applications, an issue of fact was also presented as to whether or not the ailment then treated was more than a trivial one and which substantially affected the defendant’s exercise of its right, upon the basis of the facts which it sought to elicit, to accept or reject the application. We find no substantial error committed in the court’s charge. Present ■ — ■ Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.