Cotter v. Metropolitan Life Insurance , 300 N.Y.S. 1053 ( 1937 )

Appeal by defendant (a) from a judgment of the City Court of Yonkers in favor of plaintiff, and (b) from an order denying defendant’s motion to set aside the verdict and for a new trial. Judgment reversed on the law, with costs, and complaint dismissed, with costs. Appeal from order dismissed, without costs. Defendant pleaded as a defense that the insured violated the terms of the policy in suit as to sound health at the time the policy was issued, and as to hospitalization and treatment by a physician for a serious disease or complaint within two years before such time. The uncontradieted evidence established the defense in each phase. Plaintiff sought to show that defendant had waived such defense, and was estopped from asserting it, but failed to produce evidence to support a finding of waiver or estoppel.. Hagarty, Davis, Adel, Taylor and Close, JJ., concur.