The representation in this case is, not that the assured had not consulted or been treated by any physician within five years of the application (Saad v. New York Life Ins. Co., 201 App. Div. 544; affd., 235 N. Y. 550), but that she had not been “ under the care ” of a physician during that period. It was not shown that the assured was under the care of Dr. Klein, the only physician licensed to practice medicine in New York called by the defendant, because the definite testimony in the case with respect to treatment by that doctor is that he merely called once and told the plaintiff to give the assured a hot drink for a cold, and the testimony of the Italian physician, not admitted to practice medicine in this State, is that he merely “ advised ” her two or three years before she died. It follows that the direction of a verdict for the defendant was error.
Judgment reversed, with thirty dollars costs, and judgment directed for the amount demanded in the complaint, with interest and costs.
Present — Bijur, Delehanty and Crain, JJ.