
    New York Life Insurance Company, Appellant, v. Nellie Thomas and Another, Respondents.
   Judgment affirmed, with costs. Memorandum: The policy which the plaintiff in this action seeks to have declared invalid was originally written in 1925. The policy so far as disability payments is concerned lapsed for non-payment of premiums on May 7, 1935. On the twenty-sixth of June following the defendant-insured applied for reinstatement stating that she was then in the same condition of health as when the policy was written and that she had not consulted or been treated by a physician. The policy was then fully reinstated by the company. The action is based on the alleged falsity of these statements. On September 8, 1936, the insured applied for disability benefits asserting that since November, 1935, she had been wholly unable to earn a living. There are statements in her correspondence with the plaintiff and in a letter written by her physician to the company which the plaintiff claims lead to the conclusion that the statements made in her application for reinstatement of the policy were false. On the other hand, the defendant and her physician, who were both called as witnesses by the plaintiff and were in fact its only witnesses, assert the truth of the defendant-insured’s statements made on her application for reinstatement. A question of fact was thus presented which the trial justice resolved in favor of the defendant. There is thus evidence to support his findings and we have reached the conclusion that an acceptance of the testimony of the insured and her physician, considering the explanations made, was not unreasonable and that the findings in favor of the defendants on this issue were not against the weight of the evidence. All concur. (The judgment is for defendants in an action to vacate a reinstatement of an insurance policy.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.  