
    John Nicotra, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant.
   Action to recover under an industrial life insurance policy after death of the insured. Order of the Appellate Term affirming a judgment of the Municipal Court of the City of New York, borough of Brooklyn, which was entered on a jury verdict in favor of plaintiff, reversed on the law, judgment of the Municipal Court vacated, and a new trial ordered in the interests of justice, costs in all courts to abide the event. The avoidance clause in the policy is permitted by and drawn in the language of paragraph (b) of subdivision 3 of section 163 of the Insurance Law (L. 1939, ch. 882). There is no evidence that the defendant waived its right to void the policy, and the issue of waiver should not have been submitted to the jury. The insurance company did not waive its right to void the policy merely because it issued the policy after it had knowledge that the insured had consulted a doctor for' a condition that may not have been serious. Under the evidence, the issues for the jury were whether or not the insured had been treated or attended by Dr. Gross and whether or not the plaintiff had sustained the burden of showing that the condition of the insured which occasioned such treatment or attention was not of a serious nature or not material to the risk. No such issues were submitted. The exception taken at the trial was not sufficient to point out the errors in the instructions to the jury, but in the interests of justice the verdict should not stand where the jury had not been properly instructed as to the only material issues in the case. Close, P. J., Carswell, Adel and Aldrich, JJ., concur; Lewis, J., concurs for reversal and vacation of the judgment but dissents as to the granting of a new trial and votes to dismiss the complaint with the following memorandum: The evidence uneontrovertedly discloses that the condition for which the plaintiff was treated was of a serious nature. There was no evidence of waiver. No purpose, therefore, will be served by granting a new trial.  