
    Pasquale Marino, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 17, 1958.
    
      David R. Crow for appellant.
    
      Joseph F. Ruggiero and Richard Noel Burns for respondent.
   Per Curiam.

The evidence established that plaintiff’s illness existed before the policy was issued and was, therefore, not within the coverage of the policy. In addition the defendant proved that the denial by plaintiff that he had had medical treatment within five years prior to making application for the policy was a material misrepresentation and that the policy would not have been issued if the defendant had knowledge of the facts misrepresented. (Insurance Law, § 149.)

The judgment should be unanimously reversed upon the law and facts, with $30 costs to defendant, and complaint dismissed, with appropriate costs in the court below. Appeals from orders dismissed as academic.

Concur — Pette, Hart and Brown, JJ.

Judgment reversed, etc.  