
    Morris Apter, Appellant, v. The Equitable Life Assurance Society of the United States, Respondent.
   This is an appeal from a judgment on the counterclaim of the defendant for the return of the amount paid under disability benefits, cancellation of waiver of payment of premiums and disability benefits and cancellation of the policies on the ground of non-payment of premiums. The plaintiff stated in his application that he had not consulted a physician or had not been treated by one during the past five years. The evidence showed that he had consulted a physician and was sick at the time; that he had consulted a second physician who examined him and who found him suffering from no clinical disease but who considered him a border line case. The plaintiff failed to offer any evidence in contradiction of the evidence offered by the defendant. Judgment affirmed, with costs. Hill, P. J., Crapser, Bliss and Heffernan, JJ., concur; Rhodes, J., dissents on the authority of Smith v. Glens Falls Ins. Co. (62 N. Y. 85).  