
    HOFFMAN v. METROPOLITAN LIFE INS. CO.
    (Supreme Court, Appellate Division, Second Department.
    November 10, 1911.)
    Insurance (§ 291*)—Avoidance of Policy—Prior Serious Disease—Provisions of Policy.
    Where a policy provided that it was void if before its date insured had had disease of the kidneys, and just prior to securing the insurance insured had been confined in a hospital on account of kidney trouble, and afterwards died from such disease, a judgment against insurer could not stand.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.]
    Appeal from Municipal Court, Borough of Brooklyn, Third District.
    Action by Harriet Hoffman against the Metropolitan Life Insurance-Company. From a judgment for plaintiff, and'from an order denying a new trial, defendant appeals. Reversed, and new trial ordered.
    Argued before JENKS, P. J., and BURR, THOMAS, CARR, and WOODWARD, JJ.
    James G. Purdy, for appellant.
    Emanuel Jacobus (Henry Marx, on the brief), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The plaintiff has had two previous judgments,, both of which have been reversed by this court, and now for a third time she has been awarded judgment. With each new trial the plaintiff has made an effort to meet the requirements of the opinion of this court, and in the present instance has succeeded in getting within the letter o.f the rule laid down upon the last appeal. 141 App. Div. 713, 715, 126 N. Y. Supp. 436. We are of the opinion, however, that the-case still lacks the essential elements to justify the judgment.

Among the conditions to be found in the policy involved in this, action is one that:

“Unless otherwise stated in the blank space below in a waiver signed by the secretary, this policy is void if the insured before its date * * * has been attended by a physician for any serious disease or complaint, or has had before-said date * * * disease * * * of the kidneys.”

The defendant had a right to determine the condition on which it would write this policy of insurance, and it clearly appears from the evidence in this case that the insured was confined to a hospital, where-he was treated for a disease of the kidneys, just prior to the taking out of this policy, and it appears from the evidence that he came to-his death by reason of this same character of disease within a short time after the policy was delivered. The case has already been sufficiently discussed in all its bearings, and the judgment ought not to stand.

The judgment appealed from should be reversed, and a new trial ordered; costs to .abide the event.  