Epstein v. Metropolitan Life Insurance , 294 N.Y.S. 919 ( 1937 )

The action is by the beneficiary to recover death benefits and double indemnity death benefits under a policy of insurance issued by defendant. The sole issues tried were: Did the insured make misrepresentations in his application and was his death caused solely by accidental means? Judgment for defendant reversed on the law and new trial granted, with costs to appellant to abide the event. The admission of the certificate issued by the insured’s physician to another insurance company, wherein the physician stated he believed the insured had a cardiac condition, violated section 352 of the Civil Practice Act and constituted prejudicial error. (Poses v. Travelers Insurance Co., Hartford, Conn., 245 App. Div. 304, 306.) We are of opinion that the interjections of the learned trial justice deprived plaintiff of a fair trial. Johnston, Taylor and Close, JJ., concur; Lazansky, P. J., and Adel, J., dissent and vote to affirm pursuant to the provisions of section 106 of the Civil Practice Act.