The facts concerning the condition of the insured’s health when he applied for insurance are not as related by the defendant and adopted by the majority. We must bear in mind that, the jury having found in plaintiff’s favor, the plaintiff is entitled "to the most favorable view of the evidence, including reasonable inferences which may be drawn therefrom” (Lee v Lesniak, 40 AD2d 756; see, also, Owen v Rochester-Penfield Bus Co., 304 NY 457, 459). All disputed questions of fact and credibility must be viewed in the light most favorable to plaintiff and deemed to have been resolved in plaintiff’s favor. (Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379.) Thus viewed, the record establishes that, prior to his sudden and fatal heart attack in 1968, Mr. Barbolini had no heart disease and no hypertension, that each of his doctors had so advised him, and that the isolated complaints that he had over the years were not evidence of any underlying pathology but were temporary trivial upsets about which he need not be concerned.
Mr. Barbolini, 55 years old, healthy and president and chief operating officer of the plaintiff, a large chemical concern, applied for a life insurance policy in which the corporation was designated as beneficiary. On December 8, 1967 defendant issued the $1,000,000 policy after ascertaining Barbolini’s state of health by: having him undergo two separate and complete physical examinations by its examining physicians, *220Drs. Marcus and Benson, which included an electrocardiagram, a six-foot chest X-ray, and urine specimens; having communicated with and received from Barbolini’s personal physician, Dr. Panebianco, information as to his medical background; and having obtained from Dr. Panebianco three prior normal electrocardiograms dated December 16, 1961, October 6, 1964 and May 17, 1966, together with the report of the cardiologist who took them, Dr. Kalina.
The defendant must have been fully satisfied with Barbolini’s state of health and the risk it was undertaking for it offered a second $1,000,000 policy on his life, which Barbolini refused. Ten months after the policy was issued, Barbolini suddenly died of a massive heart attack.
On January 21, 1969 defendant disclaimed liability on the principal ground that the assured had been suffering from some pre-existing cardiac condition. The letter of disclaimer stated, in part, that Barbolini had made material representations as to his past physical health that "were not true and correct, in that he had underwent [sic] treatment for serious medical conditions and had consultations and examinations by physicians in connection with these conditions prior to application for this policy.” The record does not support these assertions. Barbolini was shown to be an extremely active, driving type of executive responsible for a reasonably large firm. Uncontradicted testimony and his diaries establish that except for one episode of low back strain in 1964 and pneumonia in 1954, he never missed a working day in his abnormally busy schedule.
My brethren acknowledge that "[ojrdinarily, the question of materiality of misrepresentation is a question of fact for the jury.” And they are right. Subdivision 2 of section 149 of the Insurance Law provides: "No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless such misrepresentation was material.” (See, also, Leamy v Berkshire Life Ins. Co., 39 NY2d 271, 274 and cases therein cited.) Why the rule is not followed in this case escapes me completely. They seek to justify dismissal as a matter of law by stating that "the materiality is clear and substantially uncontradicted.” We must have read different records for I agree with the jury’s opposite finding.
The issues were exhaustively delineated and fairly submitted to the jury by an able and experienced Justice. No appellate court should substitute its judgment for that of the jury, *221absent error here not present. To do so would destroy our system. If Judges are to decide issues of fact, then let us do away with our present system via constitutional change and not by judicial fiat.
This insurance company was more than happy to underwrite this large policy. Barbolini was found by it to be so healthy that it wanted to insure his life for $2,000,000 instead of $1,000,000. Obviously the company was attracted by the prospect of fat premiums over a long period of time. Barbolini’s premature sudden death must have been as unexpected and unforeseen to him and his beneficiary as it was to the defendant who gambled and lost. Under the majority’s ruling, life insurance policies will not only be contestable during the first two years, but, I am afraid, claim-proof.
I would affirm.
Lupiano, Birns and Silverman, JJ., concur in Per Curiam opinion; Kupferman, J. P., and Nunez, J., dissent in separate opinions.
Judgment, Supreme Court, New York County, entered on June 17, 1975, reversed, on the law, and vacated, and the complaint dismissed. Appellant shall recover of respondent $60 costs and disbursements of this appeal.