
    Emil Salzer, Appellant, v. Milwaukee Insurance Company of Milwaukee, Wisconsin, Respondent.
    Argued January 9, 1967;
    decided February 23, 1967.
    
      
      Abraham Streifer for appellant.
    
      Vernon Murphy and Francis X. TucJcer for respondent.
   Memorandum. The order of the Appellate Division should be modified and a new trial directed, with costs to abide the event. There is medical proof that plaintiff was disabled to the extent he could not perform all the duties of his occupation

during portions of the period between the accident of July 6, 1962 and the surgical operation for varicose veins on April 28, 1963. There is also proof that during some of this period the injury, and not the varicose veins, caused the disability. The diagnosis on admission to the hospital on August 27, 1962 and the final diagnosis were ‘ ‘ traumatic dermatitis of both legs ”. Plaintiff is entitled to the most favorable factual view of the record.

Although the operating surgeon was of opinion that both the varicose veins and the injury contributed to the condition he observed in August, 1962, a jury could find under the record as developed that the varicose veins merely slowed the process of healing an injury of undoubted traumatic origin and that the accident was essentially the cause of disability which immediately followed the accident.

The surgical procedure in April, 1963 for varicose veins and the resulting disability were, however, within the exclusion clause of the policy and the Appellate Division was right in dismissing this part of the claim for damages. At the new trial the question of the extent to which the accident itself caused disability prior to the operation should be re-examined and factually decided. Recovery would not be barred as a matter of law if the jury found that the varicose veins merely delayed the process of healing the effect of trauma (McGrail v. Equitable Life Assur. Soc., 292 N. Y. 419; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81).

Chief Judge Fold and Judges Scileppi, Bergan, Keating and Breitel concur in memorandum; Judge Van Voorhis dissents and votes to affirm upon the opinion at the Appellate Division; Judge Burke taking no part.

Order modified and a new trial granted in accordance with the memorandum herein, with costs to abide the event.  