As the complaint limited the cause of death through accidental means to barbiturate poisoning “ independently and exclusively of all other causes ” the court’s refusal to charge in language similar to defendant’s request in that regard was prejudicial error, which was not cured by the subsequent instructions that it was for the jury to construe what the parties intended by that clause, “ whether the deceased died by accidental means ”; that if “ the alcoholism was a contributing cause based upon everything you heard within the terms of the contemplation of the parties when they entered into that agreement, then you must find for the defendant.” (Powley v. Equitable Life Assur. Soc. of U. S., 257 App. Div. 324, affd. 284 N. Y. 664; Johnson v. Blaney, 198 N. Y. 312.)
The judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.
Hammer, Hoestadter and Hecht, JJ., concur.
Judgment reversed, etc.