
    (93 Misc. Rep. 522)
    HERSCHKOWITZ et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
    (Supreme Court, Appellate Term, First Department.
    February 23, 1916.)
    1. -Insurance <@=>646, 668—Suicide—Presumption—Question fob Juby.
    The law indulges in the presumption that a person will not take his own life, and where the facts are as consistent with death from negligence, accident, or homicide, as by suicide, the presumption is against suicide; and evidence that insured, whose policy excepted suicide, was found in his bedroom about 6 o’clock in the morning, either dying or actually dead, and that his death was caused by illuminating gas asphyxiation, without evidence as to how the gas escaped, or as to any circumstance tending to show any intent to commit suicide, was not sufficient to overcome the presumption and raise a question of fact for the jury, so that the trial justice was required to direct a verdict against the insurer.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1555, 1556, 1645-1668, 1732-1770; Dec. Dig. <@=>646, 668.]
    2. Insurance <@=>659—Action on Policy—Defense of Suicide—Evidence.
    In an action on a life insurance policy, defended on the ground that the insured had committed suicide, where it appeared that a witness who had loaned deceased money had been to insured’s apartment and had received a letter from insured, the exclusion of his testimony as to the contents of the letter, which might have shown an intent on the part of the insured to take his life, was error.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig; §§ 1691-1693; Dec. Dig. <@=>659.]
    <@=For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      3. Insurance <§=>659—Defense of Suicide—Evidence.
    In such action, evidence for defendant that an inspector from the gas company had examined the gas fixtures the same afternoon and had found them "in good condition was admissible, over the objection that to lay a proper foundation defendant must prove that no one having access to insured’s apartment that day had changed the fixtures.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1691-1693; Dec. Dig. <§=>659.]
    4 Evidence <@=367—Presumption—Continuance of Condition.
    It was a fair presumption that, if gas fixtures were imperfect in the morning, they would remain in such condition until the gas company’s inspector came in the afternoon.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. <®=>67.]
    <©3s»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Appeal from City Court of New York, Trial Term.
    Action by Betty Herschkowitz and others, by their guardian ad litem, Betty Herschkowitz, against the Mutual Life Insurance Company of New York. From a judgment in favor of the plaintiffs, and against the defendant, defendant appeals. Reversed.
    Argued February term, 1916, before LEHMAN, WEEKS, and DELEHANTY, JJ.
    Frederick L. Allen, of New York City (Murray Downs, of New York City, of counsel), for appellant.
    Joseph P. Segal, of New York City (I. Gainsburg, of New York City, of counsel), for respondents.
   LEHMAN, J.

The plaintiffs have obtained a judgment upon a policy insuring the life of Benjamin PLerschkowitz. The defendant set in its answer that Plerschkowitz committed suicide.

The evidence in the case shows only that the deceased was found in his bedroom about 6 o’clock in the morning, either dying or actually dead, and that his death was caused by asphyxiation from illuminating gas. There is no testimony as to how the illuminating gas escaped, nor as to any other surrounding circumstances which might tend to show any intent on the part of the deceased to take his life. “The law indulges in the presumption that a person will not take his own life, and where the facts and circumstances are as consistent with death from negligence, by accident or homicide, as by suicide, the presumption is against suicide.” White v. Prudential Insurance Company, 120 App. Div. 260, 105 N. Y. Supp. 87, and cases there cited. It seems to me that the evidence actually admitted is totally insufficient to overcome the presumption, and raised no question of fact for the jury, and the trial justice was bound to direct a verdict.

The trial justice erred, however, I think, in the exclusion of certain evidence by which the defendant attempted to overcome the presumption. It appears that one Matis Plarris had loaned to the deceased a considerable sum of money. Harris testified without objection that he went to the apartment at 9 o’clock in the morning and that he had received from the deceased a letter. He further testified that the widow had taken away the letter from him at the cemetery. The witness was not permitted to give oral testimony as to the contents of this letter, apparently upon the ground that the letter was the best evidence. Obviously this objection would be of no force if the plaintiff had received notice to produce. In this case none was served, but the plaintiff’s counsel at the trial stated: “Irrespective of that, if we had any such letter, we would produce it; but we have none.” The defendant thereby waived this objection, and upon this appeal does not seek to sustain the ruling on this ground, but urges that there is no competent proof that the letter was sent by the deceased or in his handwriting.

Aside from the fact that no such objection was properly raised at the trial, Harris was permitted to testify that he had received the letter from the deceased, and another witness, who knew tire deceased’s handwriting, was not permitted to testify that the letter was in his handwriting. If the witness had been permitted to testify as to- the contents of this letter, it might have shown an intent on the part of the writer to take his life, and thereby have raised a question of fact for the jury.

The defendant also attempted to prove by an inspector from the gas company that he examined the gas fixtures the same afternoon and found them in good condition. This evidence was excluded on the ground that to lay a proper foundation the defendant must prove that none of the people having access to' the apartment that day had changed the condition of the fixtures. It seems to me that this ruling was too strict. It is a fair presumption that, if the fixtures were imperfect in the morning, they would remain in that condition until the inspector came there in the afternoon.

Judgment should therefore be reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  