(concurring). There is no issue here as to whether the autopsy, under the terms of the policy, was 1 ‘ forbidden by law ”, .since decedent by expressly agreeing to be bound by said terms gave his consent to the autopsy (see Wehle v. United States Mut. Acc. Assn., 153 N. Y. 116, 122). Having given same, a postmortem examination as such was not forbidden by law in New York State (cf. Public Health Law, § 4210-a; see 14 N. Y. Jur., Dead Bodies, § 17).
*491The demand for the autopsy was timely made. The delay of approximately one month from the notice of death to the request for said procedure was immaterial (Gould v. Travelers Ins. Co., 244 App. Div. 274, 281, affd. 270 N. Y. 584) since, under all the circumstances, it was not excessive (see Bernstein v. Metropolitan Life Ins. Co., 142 Misc. 516, 517, affd. 239 App. Div. 882). However, because of the proof of insured’s 1961 hospitalization, his precordial pain and the diagnosis of hypertension upon his discharge, there is a question of fact whether defendant’s demand for the autopsy, made after interment, was reasonable (Dvorkin v. Commercial Travelers Mut. Acc. Assn. of Amer., 258 App. Div. 501, 503, affd. 283 N. Y. 629; McCulloch v. Mutual Life Ins. Co. of N. Y., 109 F. 2d 866, 869). Whether there was a reasonable certainty that an examination of the body would have revealed something bearing on the rights of the parties, which could not otherwise have been discovered, should be decided upon a trial.