Ginell v. Prudential Ins. Co. of America
| Decision Date | 27 December 1923 |
| Citation | 237 N.Y. 554,143 N.E. 740 |
| Parties | Joseph GINELL, Respondent, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (205 App. Div. 494,200 N. Y. Supp. 261), entered May 25, 1923, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover under a permanent disability clause in a policy of insurance providing that, if the plaintiff should, during the continuance in force of the contract, furnish due proof to defendant that plaintiff, while less than 60 years old, had become ‘permanently disabled or physically or mentally incapacitated to such an extent that he, by reason of such disability or incapacity, is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, defendant, upon receipt of such proof,’ would in consideration of 11 cents per quarter waive payment of premiums, reserved in such contract, during such disability and pay to defendant $10 monthly, during such disability. Plaintiff, having become ill with tuberculosis, requested waiver of the premiums and payment of the indemnity, which request was refused on the ground that the disability was not permanent within the meaning of the policy.
William S. Ostrander, of Saratoga Springs, Edgar T. Brackett, of New York City, and Spencer B. Eddy, of Saratoga, Springs, for appellant.
A. F. Walsh, of Saratoga Springs, for respondent.
Judgment reversed, and complaint dismissed, with costs in all courts on dissenting opinion of VAN KIRK, J., below.
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