
    Charles Goell et al., Respondents, v. United States Life Insurance Company in the City of New York, Appellant. Charles Goell, Respondent, v. United States Life Insurance Company in the City of New York, Appellant.
    First Department,
    June 15, 1945.
    
      
      Henry Q. Moses of counsel (Charles J. Nehrbas with him on the brief; Gerdes & Montgomery, attorneys), for appellant.
    
      William Rosmarin of counsel (Mitchell May and Jerome M. Schwartz with him on the brief; Levin, Rosmarin & Schwartz, attorneys), for Charles Goell, respondent.
    
      C. Elmer Spedick for City Real Estate Company, respondent.
   Per Curiam.

On a previous appeal from a judgment in faVor of the defendant we stated that the plaintiff has the advantage of a presumption that the age stated in the policy is the true age ” until rebutted by evidence to the contrary. (265 App. Div. 735, 736.) We did not intend to hold that at the conclusión of the entire case the burden of proof rested on the defendant to establish that the policy did not cover the plaintiff’s disability on account of age. The rule in this respect is to the contrary (Lavine v. Indemnity Ins. Co., 260 N. Y. 399; Steinmann v. Metropolitan Life Insurance Co., 257 App. Div. 656; Carles v. Travelers Ins. Co., 238 App. Div. 43) and requires reversal of the judgment in No. 15536.

This conclusion also requires reversal of the judgment in No. 15537 Avhich was based on the judgment in favor of the plaintiffs in No, 15536. The reversal and denial of the motion for summary judgment should, however, be without prejudice to renewal of the motion should the plaintiff be successful on a new trial.

The judgment in No. 15536 should be reversed and a new trial granted, with costs to the appellant to abide the event. The judgment and the order in No. 15537 should be reversed, with, costs, and the motion denied without prejudice to renewal of the motion if the plaintiff is successful on a new trial.

Martin, P. J., Glennon, Untermyer and Dore, JJ., concur; Townley, J,, dissents and votes to affirm.

In the first above-entitled action: Judgment reversed and a new trial granted, with costs to the appellant to abide the event. Settle order on notice.

In the second above-entitled action: Judgment and order reversed, with costs, and the motion denied without prejudice to renewal of the motion if the plaintiff is successful on a new trial. Settle order on notice. 
      
       First above-entitled action,
     
      
       Second above-entitled action.
     