This is an appeal (1) from a judgment of the Supreme Court, entered September 12, 1972 in Albany County, upon a verdict rendered at a Trial Term in favor of plaintiff, and (2) from an order of said court, entered October 5,1972, which denied defendant’s motion to set aside the verdict.
This is an action to recover payments for total disability under the provisions of Plan A in a group accident and health insurance policy issued by defendant. Plan A provided an indemnity of $1,000 per month. Defendant has refused to make payments under Plan A alleging that plaintiff misrepresented the condition of his health and failed to reveal that he suffered from paroxysmal atrial fibrillation and cardiac abnormality in response to a specific question ill the application for coverage, and that, if he had revealed the condition, defendant would not have issued the policy.
On a prior appeal, this court held that questions of fact existed as to whether plaintiff misrepresented the condition of his. health, as well as the materiality of any such misrepresentation, and denied plaintiff’s motion for summary judgment under Plan A (Vander Veer v. Continental Cas. Co., 30 A D 2d 506). After a trial before a jury, a verdict was rendered in favor of plaintiff, and defendant has appealed from the judgment renddered on that verdict. On the trial, the court charged the jury that it must determine two factual issues: first, whether plaintiff misrepresented the condition of his health and the medical treatment he had had, and whether knowledge of the facts would have led defendant to refuse to issue the policy of insurance.
*313We find that two issues of fact were presented at the trial forf jury determination, namely, whether plaintiff made any misrepresentation as to his health and, if so, did the misrepresentation materially affect the acceptance of the risk by defendant.
On the application dated January 27, 1963, -plaintiff stated that, to the best of his knowledge, he was in good health and free from any physical impairment or disease. In response to a question requesting details relative to medical advice or treatment for various disorders which included the cardiovascular system, plaintiff listed six episodes of illness, all of which had a duration of one week or more. Defendant bases'its refusal to pay under Plan A on an allegation that plaintiff suffered “ from cardiac abnormality and on January 19,1962 was treated for paroxysmal atrial fibrillation” and that he had episodes of the same since adolescence.
Plaintiff testified that, on January 19, 1962, he visited his physician, Dr. Guest, complaining of feeling faint and having palpitations. An electrocardiogram revealed an irregular heart, and his condition was diagnosed as atrial fibrillation. Plaintiff denied that he ever had or had given any history of having episodes of paroxysmal atrial fibrillation since adolescence. He returned to work on January 19, 1962 after the visit to Dr. Guest, and performed his normal duties and cop-tinned in active practice of surgery until the accident on October 3, 1964 As an aftermath of the accident, plaintiff had a massive pulmonary embolism which resulted in his total disability.
Dr. Guest testified that he had taken electrocardiograms of plaintiff in 1959 and 1960 which were normal. His diagnosis of plaintiff’s condition on January 19, 1962 was atrial fibrillation which was functional and not organic, and that there was no disease of the heart.
Dr. Guest prescribed quinidine three times a day which plaintiff continued to take after the January 19, 1962 episode. Dr. Guest took a subsequent electrocardiogram on February 22, 1962 which was normal, and he expressed his opinion that the irregularity of plaintiff’s heart on January 19, 1962 was an isolated episode. Dr. Guest further testified that his statement in the report that plaintiff had episodes of paroxysmal atrial fibrillation since adolescence was erroneous. Dr. Guest’s conclusion was that plaintiff’s heart was benign, and that he had no heart disease. He further testified in response to the question “ Was. anything wrong with the top part or auricle of Dr. Vander Veer’s heart ” that there was no disease of it. In a report dated July 12, 1965, Dr. Guest stated that he examined
*314plaintiff on February 21,1962 and March 3,1962, and that “ at these times he had normal sinus rhythm ”.
Dr. Joseph T. Doyle, the head of the Division of Cardiology at the Albany Medical College and the Albany Medical Center Hospital, testified that he had examined the electrocardiograms taken in 1959, on January 19, 1962, and February 22, 1962; that the January 19 electrocardiogram showed atrial fibrillation, but no other abnormality; and both the earlier and subsequent ones were entirely normal. After reading the hospital records relative to plaintiff’s hospitalization after his accident on October 3,1964 in response to a hypothetical question, Dr. Doyle expressed the opinion that plaintiff’s heart was normal at that time: He further testified that he had never treated plaintiff.
Defendant presented one witness, Mr. Schager, the chief underwriter for the Association Group Division handling the accident and. health coverages for the defendant. He testified that if plaintiff’s fibrillation incident had been disclosed, the policy insuring plaintiff under Plan A would not have been issued. However, he also testified that defendant’s underwriting manual, which was in evidence as an exhibit, was the guide used to determine whether or not policies would be issued, and that the reason plaintiff would have been rejected was based on the manual. Mr. Schager stated that the applicable portion of the manual was the item “ arrythmia ”. There are two types set forth in the manual: (1) sinus — the type caused by normal reaction; and (2) total — this means something wrong with the top part of the heart, the auricle, producing fibrillation flutter. Mr. Schager testified that the word sinus or normal rhythm was *l the type caused by normal reactions, and that type of a risk is acceptable.” As to the total type, he testified that if there had been one acute attack and a complete recovery for three years, it was then an acceptable risk. Plaintiff would have been rejected under the total category. Mr. Schager further testified that the sinus part or benign type of heart condition was acceptable. The medical testimony indicates that plaintiff’s heart was normal and his isolated episode was of this benign type.
In Piccininni v. Aetna Life Ins. Co. (250 App. Div. 498, 499), the court stated: “ In our opinion, it was a question of fact for the jury to determine whether the false statement in the application for the policy materially affected either the acceptance of the risk or the hazard assumed by the insurer.” (See, also, Giuliani v. Metropolitan Life Ins. Co., 269 App. Div. 376; Tierney v. Travelers Ins. Co., 179 Misc. 604, affd. 267 App. Div. 804; Insurance Law, § 149.)
*315On the basis of the evidence, it is impossible to agree with the contention that the verdict is against the weight of the evidence, and, as a matter of law, that the alleged misrepresentation was material. On the contrary, the question of the alleged misrepresentation and the materiality thereof were questions of fact and solely within the province of the jury to decide. The jury’s verdict in favor of plaintiff is completely supported by the record and should be affirmed.
The judgment and order should be affirmed, with costs.