Opinion
Argued June 10, 1943
Decided July 20, 1943
Appeal from the Supreme Court, Appellate Division, First Department, SCHMUCK, J.
Henry Cohen for appellants. Eugene Z. Du Bose and James D. Ewing for respondent.
Judgment modified by reversing as to Policy No. 3,696,772, and as so modified, the judgment is affirmed with costs to the appellant.
On the application for reinstatement of the above numbered policy, defendant failed to disclose that he had consulted physicians once for constipation and three or four times for a cold. Such failure did not constitute "a misrepresentation, material or otherwise." ( Geer v. Union Mut. Life Ins. Co., 273 N.Y. 261, 267.) The printed application form stated: "I hereby certify that I am in good health; that except as stated below, I have had no illness, have not consulted any physician or practitioner, * * * since the issuance of the policy." A reasonable construction of the scope of the disclosure required excludes consultations "for such minor ills as constipation or common cold in the head, which are readily relieved by simple remedies and do not impair his general health." ( Jenkins v. John Hancock Mut. Life Ins. Co., 257 N.Y. 289, 293.)
The insured is still alive — ten years after making the application for reinstatement. The constipation and colds were not the cause of his disability. The facts which were not disclosed were not such as might reasonably affect the choice of the insurance company as to whether to accept or reject the application ( Geer v. Union Mut. Life Ins. Co., supra) nor did the failure to disclose them materially increase the risk. (Cf. Insurance Law, § 150.)
The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs to the appellant.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, DESMOND and THACHER, JJ., concur; LEWIS, J., taking no part.
Judgment accordingly.