
    Charles W. Danker, as Administrator, etc., of Agnes Danker, Deceased, Respondent, v. Prudential Insurance Company of America, Appellant.
   Judgment of the City Court of Yonkers and order denying motion to set aside verdict and for a new trial reversed on the law and the facts and a new trial ordered, costs to appellant to abide the event. The trial court correctly charged that the plaintiff “ must show affirmatively by a fair preponderance of the evidence that upon the date of the issuance of the policy the insured was in sound health.” (Battah v. Prudential Insurance Co., 151 Misc. 176; Goodfriend v. American Credit Indemnity Co., 217 App. Div. 635, 638; Lee v. Prudential Life Insurance Co., 203 Mass. 299, 301; Greenbaum v. Columbian Nat. Life Ins. Co. of Boston, 62 F. [2d] 56, 58.) We are of'opinion that plaintiff’s case failed to bear the burden of proof imposed upon him by law. Lazansky, P. J., Kapper, Hagarty, Seudder and Davis, JJ., concur.  