
    Mary Conk, as Administratrix, etc., of Thomas Creighton, Jr., Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    First Department,
    June 22, 1937.
    
      William B. Moore of counsel [Tanner, Sillcocks & Friend, attorneys], for the appellant.
    
      David S. Romanov of counsel [Edward T. Beldegreen, attorney], for the respondent.
   Per Curiam.

Plaintiff, as administratrix, sued in the Municipal Court on an industrial policy for $500 issued November 1, 1928, on the life of Thomas Creighton, Jr. The Appellate Term, without opinion, affirmed a judgment for plaintiff entered upon a jury’s verdict after trial.

After plaintiff’s prima facie case the defendant showed that the insured had received treatment in a hospital from July 13 to August 28, 1928; that on October 31, 1928, the day before the policy took effect (November 1, 1928), he was removed from his sister’s house on a stretcher and returned to the hospital in an ambulance where he remained until his death six days later on November 7, 1928. Plaintiff offered no evidence as to the physical condition of the insured on her direct case, and tendered none by way of rebuttal. Defendant’s evidence, therefore, stood without contradiction.

As stated in Travelers Insurance Company v. Pomerantz (246 N. Y. 63, 69 [1927]): “ All evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.”

In our opinion the finding of the jury that the defendant failed to prove its defense that the insured was not in sound health on the date of the policy and had, within two years before the policy was issued, been attended by a physician for any serious disease or complaint, is contrary to the evidence. The proof adduced established the defense of breach of the policy conditions.

It follows, therefore, that the determination appealed from and the judgment of the Municipal Court should be reversed and the complaint dismissed, with costs to defendant in all courts.

Present'—Martin, P. J., O’Malley, Glennon, Dore and Cohn, JJ.

Determination appealed from and judgment of the Municipal Court unanimously reversed and the complaint dismissed, with costs to the defendant-appellant in all courts.  