
    Philip Berkowitz, Appellant, v. The Equitable Life Assurance Society of the United States, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 30, 1938.
    
      Matthew L. Salonger, for the appellant.
    
      Alexander & Green [Samuel M. Lane of counsel], for the respondent. •
   Per Curiam.

The verdict was directed on the theory that the proofs of claim were defective because one of the answers of the physician showed that plaintiff’s condition was not growing worse. If this point was to be made it should have been called to plaintiff’s attention at the time so that, if erroneous, it might have been corrected. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208.) The point could not properly be raised for the first time on the trial as a conclusive objection to plaintiff’s recovery. (See Wachtel v. Equitable Life Ins. Soc., 266 N. Y. 345.) The minutes of the previous trial were improperly admitted in evidence.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Frankenthaler, Shientag and Noonan, JJ.  