
    Ida Barsky, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    February 4, 1960.
    
      Tanner, Friend, Kinnan <& Post (David R. Croiv of counsel), for appellant. Louis Steckler for respondent.
   Per Curiam.

The physical facts as revealed by the record are inconsistent with a claim of accident, nor is there any evidence of an accident or a basis upon which an inference of accident may be predicated. There is no support for the possibility of deceased having been attacked and thrown to his death.

There is evidence of heart symptoms and depression and sufficient facts to overcome the presumption against, suicide.

In view of all the circumstances here there is no support for a judgment in favor of plaintiff based upon accidental death.

The judgment should be reversed, with costs, and complaint dismissed, with costs.

Tilzer, J.

(dissenting). The majority Opinion concerning the facts is diametrically opposed to the findings of the Trial Justice. Thus, the court is substituting its judgment for that of the trier of the facts who not only saw the same photographs examined by this appellate court, but who also saw and heard the witnesses. It was well within the province of the Trial Justice to disregard testimony of defendant’s witness, Detective Durkin, who testified that the widow had told him on the morning of the deceased’s disappearance that her husband was depressed ”. It was for the Trial Justice, too, to weigh the eonclusory statements of the widow and, in the absence of testimony as to the nature and duration of the deceased’s illness by the physician who allegedly treated him, to conclude that there was presented but a question of fact. No person witnessed the event; there is no direct evidence to tell us what really happened. That deceased deliberately jumped to his death is mere conjecture. The circumstances are not such that one must say that death occurred “ wholly inconsistent with a finding of accident and there is no reasonable hypothesis available except that of suicide ” (Wellisch v. John Hancock Mut. Life Ins. Co., 293 N. Y. 178,185; see, also, Shtevelan v. Metropolitan Life Ins. Co., 162 Misc. 835, affd. 254 App. Div. 729). The defendant failed to establish by a fair preponderance of the evidence that insured’s death was the result of suicide.

Accordingly, I dissent and vote to affirm.

Hecht, J. P., and Aurelio, J., concur; Tilzer, J., dissents in memorandum.

Judgment reversed, etc.  