The prior decision on appeal did not rule that plaintiff’s proof of continuance of total and permanent disability was sufficient as matter of law. The proof given to the company should be submitted to the jury with proper instructions to determine as a fact whether it was such reasonable evidence as plaintiff could command at the time *760to give assurance that tlie total and permanent disability which the defendant, had previously recognized, and upon which it had paid, continued during the period for which suit was brought. (Wachtel v. Equitable Life Assur. Soc., 266 N. Y., 345.) It was prejudicial error to refuse to charge that portion of defendant’s request that plaintiff had the burden of furnishing due proof of continuance of total and permanent disability.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Hammer, and Hecht, JJ., concur; Shientag, J., dissents.