
    Mary Kiernan, Respondent, v. The Metropolitan Life Insurance Co., Appellant.
    (New York Common Pleas—General Term,
    June, 1895.)
    That pneumonia of which a. patient dies is a “disease” is a fact of judicial cognizance, and a judgment founded on a negation of the fact, though supported by evidence, will be reversed for error.
    Appeal from a District Court.
    Action on a policy of life insurance, and judgment for plaintiff in the sum of sixty-five dollars and costs.
    The opinion sufficiently states the case. .
    
      Arnoux, Bitch, ds Woodford, for appellant.
    
      Adam, Wiener, for respondent.
   Pryor, J.

By the terms of the policy on which the action proceeds, if the death of the insured was from “ pulmonary disease ” the plaintiff could recover only thirty-two dollars and fifty cents, otherwise she is entitled to the judgment for sixty-five dollars.

The insured died of acute lobar pneumonia, by concession a pulmonary affection, but denied by plaintiff to be a disease. And she has found an expert ” to testify and a judge to decide that a mortal pneumonia is not a disease.

It hardly consists with judicial gravity to argue against a proposition of which the absurdity is self-evident; which involves at once an affront to common sense, a misconception of the plain sense of a plain word, and a contempt for the uniform and universal signification of. scientific nomenclature.

That pneumonia is a disease is a notorious fact, and so a fact of judicial cognizance. Brown v. Piper, 91 U. S. 37,42; Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. Rep. 570; Kaolatype v. Hoke, 30 id. 444; People v. Snyder, 41 N. Y. 397; Lanfear v. Mestier, 89 Am. Dec. 658, note 663, 691, 693; 1 Greenl. Ev. § 6; 1 Whart. Ev. § 282.

As the court takes notice of the fact, no proof of it was requisite (Secrist v. Petty, 109 Ill. 188), and no issue could be joined upon it-. Board s. Burford, 93 Ind. 383.

The judgment should have been but for thirty-two dollars and fifty cents, and it is modified accordingly, with costs of the appeal to the defendant.' The defendant cannot have judgment, because it is not apparent that the money was paid into court. Code Civ. Proc. § 732; Taylor v. Elevated R. R. Co., 119 N. Y. 561. 1

Bookstayer, J., concurs.

Judgment modified in accordance with opinion, with costs to defendant.  