
    Long Island College Hospital, Plaintiff, v. Abraham Hertz, Defendant and Third-Party Plaintiff-Respondent. Associated Hospital Service of New York, Third-Party Defendant-Appellant.
   Appeal by permission of this court from an order of the Appellate Term which affirmed a judgment o£ the Municipal Court of the City of New York, Borough of Brooklyn, First District, in favor of respondent and against appellant. Bespondent sought to recover, under his contract of insurance, the amount of payments made by him for hospital services which he had received from plaintiff. Appellant disclaimed liability on the ground that respondent’s hospitalization was primarily for diagnostic purposes and was therefore excluded under the express terms of its contract. The trial court found that respondent was admitted to the hospital for the purpose of treatment and not for diagnosis. Order of the Appellate Term and judgment of the Municipal Court reversed upon the law and the facts, with costs in this court and in the Appellate Term, and third-party complaint dismissed. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the overwhelming weight of the evidence established that respondent’s hospitalization was primarily for diagnostic studies. Nolan, P. J., Ughetta, Kleinfeld and Brennan, JJ., concur; Beldock, J., dissents and votes to affirm the order of the Appellate Term, with the following memorandum: In my opinion, there was sufficient evidence upon which to base a finding that respondent went to the hospital primarily for surgery, which turned out to be unnecessary, and not primarily for diagnosis. That evidence consisted of testimony (a) as to the diagnosis by respondent’s attending physician of hiatus hernia, which was also the final diagnosis of the hospital, and (b) that all the tests performed by the hospital could have been performed in the doctor’s office, so that respondent probably went to the hospital for something other than mere diagnosis. The diagnostic tests were merely preparatory to possible surgery. After the Appellate Term has affirmed a finding of fact made by a trial court this court should not reverse that finding merely on the ground that it is against the weight of the evidence.  