
    Angelina De Fazio, Plaintiff, v. Metropolitan Life Insurance Company, Defendant.
    Supreme Court, Appellate Term, First Department,
    May 11, 1927.
    Insurance — life insurance • — • action to recover proceeds of policy — insurer claims decedent represented she had not been “ under the care” of physician — proof showing physician called only once, insufficient to warrant verdict for defendant.
    In this action to recover the proceeds of a life insurance policy, defendant claims that decedent made misrepresentations that she had not been “ under the care ” of a physician for five years prior to the date of her application. Since the evidence merely shows that a physician called but once, and then suggested that decedent be given a hot drink for a cold, it cannot be said that decedent was “ under the care ” of a physician, and consequently the direction of a verdict for defendant was error.
    Appeal by the plaintiff from a judgment of the Municipal Court, Borough of Manhattan, Fourth District, on a directed verdict for the defendant.
    
      This action was brought to recover the sum of $500 as the proceeds of a policy of insurance issued by the defendant on the life of one Ida De Fazio. The defendant in its answer sets up the defenses that insured made certain material misrepresentations, in that she represented that she had not been under the care of any physician for five years prior to the date of her application for insurance.
    
      Gettinger, Schwartzwald & Gettinger [Milton M. Gettinger of counsel], for the appellant.
    
      Edward M. Grout and Paul Grout [Charles B. La Voe of counsel], for the respondent.
   Per Curiam.

The representation in this case is, not that the assured had not consulted or been treated by any physician within five years of the application (Saad v. New York Life Ins. Co., 201 App. Div. 544; affd., 235 N. Y. 550), but that she had not been under the care ” of a physician during that period. It was not shown that the assured was under the care of Dr. Klein, the only physician licensed to practice medicine in New York called by the defendant, because the definite testimony in the case with respect to treatment by that doctor is that he merely called once and told the plaintiff to give the assured a hot drink for a cold, and the testimony of the Italian physician, not admitted to practice medicine in this State, is that he merely “ advised ” her two or three years before she died. It follows that the direction of a verdict for the defendant was error.

Judgment reversed, with thirty dollars costs, and judgment directed for the amount demanded in the complaint, with interest and costs.

Present — Bijur, Delehanty and Crain, JJ.  