Acker v. Manhattan Life Insurance , 175 N.Y.S.2d 933 ( 1958 )

In an action to recover under a double indemnity provision of a life insurance policy, the appeal, by permission of the Appellate Term, is from an order of that court which affirmed a judgment of the City Court of the City of New York, Kings County, entered on a jury verdict, in favor of respondent. The policy was issued by appellant on the life of respondent’s husband, of which policy she was the beneficiary. Order of the Appellate Term reversed on the law and the facts, without costs in this court and in the Appellate Term, judgment of the City Court vacated, and complaint dismissed. The jury had no right to reject the testimony of the motorman, the operator of the subway train -which was alleged to have caused the insured's death. That testimony showed that the insured jumped in front of the train when it was within three feet of him. The testimony was supported by undisputed proof that the insured had been separated from his employment for a month, had been in a hospital for a nervous condition, and that the respondent had stated upon being notified of the death, that the insured had said he would do it and that she, respondent, had signed him out of the hospital and should not have done so. In any event we would reverse and grant a new trial because of the prejudicial comments, questions and rulings of the trial court. Wenzel, Acting P. J., Murphy and Ughetta, JJ., concur; Beldock, J., concurs in the reversal of the order and the vacating of the judgment but dissents from the dismissal of the complaint and votes to order a new trial, with the following memorandum: Whether death resulted from accident or suicide was a question of fact. (Begley v. Prudential Ins. Co., 1 N Y 2d 530.) The complaint is being dismissed solely on the ground that the jury had no right to reject the testimony of the motorman in charge of the train which caused the death to the effect that death was suicide. There is a wrongful death action pending against the motorman’s employer based on the occurrence here involved. In that action the motorman would be an interested witness, whose testimony might be rejected even if not contradicted. (Noseworthy v. City of New York, 298 N. Y. 76.) While technically the motorman may not be an interested witness in this action against an insurance company, in my opinion, the complaint should not be dismissed solely on the basis of his testimony. Kleinfeld, J., dissents and votes to affirm the order of the Appellate Term.