Pawliuk v. Prudential Insurance of America , 246 A.D. 744 ( 1935 )

Judgment of the City Court of Yonkers, the order denying defendant’s motion to set aside the verdict and for a new trial, and the order denying defendant’s motion for a new trial on newly-discovered evidence reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. The plaintiff makes a claim on two policies of insurance for total disability. The question concerns the age of the insured at the time the policies were issued. The verdict is against the weight of evidence. Plaintiff evidently does not know his own age accurately, and documents containing his own admissions indicate that he was much older than the age stated in the policies. Evidently he took this view of it when the settlement was made with him on the basis of his age as admitted by him. (See decision on former appeal, 243 App. Div. 798.) The additional evidence on this trial added little, if any, corroboration to the proof produced on the former trial, although further proof must have been available. The defendant on the motion for a new trial on newly-discovered evidence showed that it would be able to produce proof in respect to the age of plaintiff and contradictory to that of the new witness. Under these circumstances, with the plaintiff’s case lacking apparent merit, the discretion of the court will be exercised to grant a new trial. Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.