
    Edith Brodsky, Respondent, v. Philip Brodsky, Appellant.
   Determination of the Appellate Term affirming judgment in favor of plaintiff, unanimously reversed, on the law, and a new trial ordered, with costs to abide the event. In this action against plaintiff’s husband to recover sums allegedly due under a separation agreement, defendant pleaded that he was induced to enter into the agreement through misrepresentations that “ plaintiff was suffering from an advanced stage of cancer and would only live a short time.” Plaintiff had undergone a radical mastectomy for carcinoma in 1952. In December, 1958 negotiations with respect to the terms of a separation agreement commenced. During them the state of plaintiff’s health and her life expectancy were discussed, and that these matters were material in fixing the monetary provisions was well within the province of the jury to find. It was the view of the trial court that the statements which were made on plaintiff’s behalf in the course of the discussions, and which defendant contends constituted representations of fact, amounted to no more than predictions that plaintiff had but a short time to live, and on this basis alone the court directed a verdict in her favor. In our opinion the jury, if it believed defendant, could reasonably find that representations of fact were made. 'Thus, he testified that he had been told that “metastasis -had set in, the spreading of the cancer” and that the cancer had spread and that it had affected her vision ”, While these statements of course had a bearing on plaintiff’s life expectancy, they pictured an existing physical condition. That a statement of fact may form the •predicate of a prognostication does not per se convert it into one. Concur — Botein, P. J., Breitel, McNally, Stevens and Bastow, JJ.  