
    Joseph Ginell, Respondent, v. The Prudential Insurance Company of America, Appellant.
    
      Insurance — life — permanent disability clause — when illness from tuberculosis not permanent disability within meaning of contract.
    
    
      Ginell v. Prudential Ins. Co., 205 App. Div. 494, reversed.
    (Argued December 3, 1923;
    decided December 27, 1923.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 25, 1923, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover under a permanent disability clause in a policy of insurance providing that, if the plaintiff should, during the continuance in force of the contract, furnish due proof to defendant that plaintiff, while less than sixty years old, had become “ permanently disabled or physically or mentally incapacitated to such an extent that he, by reason of such disability or incapacity, is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, defendant, upon receipt of such proof,” would in consideration of eleven cents per quarter waive payment of premiums, reserved in such contract, during such dis- ■ ability and pay to defendant ten dollars monthly, during such disability. Plaintiff, having become ill with tuberculosis, requested waiver of the premiums and payment of the indemnity which request was refused on the ground that the disability was not permanent within the meaning of the policy.
    
      William 3. Ostrander, Edgar T. Brackett and Spencer B. Eddy for appellant.
    
      A. F. Walsh for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts on dissenting opinion of Van Kirk, J., below.

' Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  