Warner v. Prudential Insurance

—Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The evidence presented a question of fact which should have been submitted to the jury as to whether defendant had waived the right to require fulfillment of the reinstatement procedure provided in the policy (see 30 N. Y. Jur., Insurance, § 848). Furthermore, it was error to foreclose examination of a witness called by plaintiff who might have supplied the foundation necessary for the introduction into evidence of the .exhibits marked 17 and 18 for identification. The trial court should not have speculated as to the testimony which might have been elicited from the trial counsel for respondent as to these two exhibits. (Appeal from judgment and order of Herkimer Trial Term dismissing complaint on the merits in an action on a life insurance policy. Order granted motion for a nonsuit.) Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.