
    Harry Reiser, Plaintiff, v. Metropolitan Life Insurance Company, Defendant.
    
    Municipal Court of New York, Borough of Manhattan, First District,
    July 15, 1939.
    
      Bernard Botein and Edward Weinfeld [Edward Weinfeld of counsel], for the plaintiff.
    
      Tanner, Sillcocks & Friend [John A. Meyer of counsel], for the defendant.
    
      
       Affd., Sup. Ct., App. Term, First Dept., June 18, 1940 (no opinion).
    
   Genung, J.

Action to recover disability payments under policy of insurance, issued January 5, 1927. The plaintiff was born on October 6, 1897, in Austria, and according to the testimony was born with club feet and when he was about a year old the tendon of Achilles was stretched in order to improve the condition of the club feet. However, the operation evidently did not completely correct the condition and in later years calcification of the bone of the heel appeared, rendering it painful for plaintiff to walk. The plaintiff claims that he became disabled on March 1, 1938, but the testimony of all the doctors called by both sides, without contradiction was to the effect that the condition which caused the alleged disability originated long prior to the date of the policy.

The policy provides that it is to cover only such disability which is the result of injury or disease “ occurring and originating after the issuance of said, policy.” All the doctors agreed that the condition of which the plaintiff complains today is the result of his being born with club feet and the manipulation or stretching of the Achilles tendon when he was about a year old. While the condition may not have made the plaintiff to be disabled until March 1, 1938, it was not the disability, but the injury or disease that must have occurred and originated after the issuance of the policy. Motion to set aside verdict and dismiss complaint granted.  