Opinion
June, 1935.
Order affirmed, with costs. Hill, P.J., Rhodes, Crapser and Bliss, JJ., concur; Heffernan, J., dissents and votes to reverse the order setting aside the verdict and to reinstate the same. A question of fact was presented as to whether or not the insured was in sound health on the date of the issuance of the policy. That question was submitted to the jury. The trial judge was not justified in setting aside the jury's findings. ( Leversee v. Neidermyer, 219 App. Div. 214; Hogan v. Franken, 221 id. 164.) The burden of proof is on defendant to establish a breach of warranty ( Spencer v. C.M.L. Ins. Assn., 142 N.Y. 505; Slocovitch v. Orient Mutual Ins. Co., 108 id. 56.) The trial judge committed no error in excluding the medical testimony as to the prior illness of the deceased. ( Rudolph v. John Hancock Ins. Co., 251 N.Y. 208.) The administratrix could not waive the privilege as to the doctors. ( Buffalo L.T. S.D. Co. v. K.T. M.M.A. Assn., 126 N.Y. 450; Smith v. Prudential Ins. Co., 147 App. Div. 580; Acee v. Metropolitan Life Ins. Co., 219 id. 246.)