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Liston v. New York Casualty Co.

Robert Liston v. The New York Casualty Co.

Liston v. N.Y. Cas. Co., 28 Misc. 240 (1899)
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Court
Appellate Terms of the Supreme Court of New York · State Appellate Courts
Decided
June 15, 1899
Judges
Leventritt
Citations
28 Misc. 24058 N.Y.S. 1090
Headnotes
Disability insurance — Breach, of conditions — Policy most favorable to insurer. Where a policy of insurance against total disability by sickness disclaims liability if the claimant can leave his bed or house, or is convalescent, or does not require the attendance of a physician at his bedside every second day, a failure of the claimant to bring his case within these limitations precludes him from recovering damages, as the court cannot relieve him if he chooses to enter into a contract which is more favorable to the insurer than it is to the insured.
Summary
Appeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the City of Hew York, first district, borough of Manhattan.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Leventritt

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Leventritt, J.

The action is upon a policy of insurance issued in January, 1894, whereby the defendant insured the plaintiff, ■ *241 among other things, against total disability caused by sickness, and in that event agreed to pay $10 per week against loss of time resulting therefrom.

One of the conditions indorsed on the policy and incorporated into the contract was the following:

“ No disability shall constitute a claim * * * where the claimant is able to leave his bed or house (in case»of disabling sickness) nor during any period of convalescence, nor when the attendance of a physician is not required every second day at the bedside.”

This action was brought to recover the agreed insurance for twenty-two weeks’ alleged disability within the meaning of this policy. We are constrained to reverse the judgment which the plaintiff recovered.

It appears from the testimony of his wife, who was the only witness called, that he was taken sick on the 6th day of September, 1898; that he was confined to his bed for about ten weeks; that during the remaining period of the alleged disability he occasionally returned to bed, and at times went abroad “ for air and recreation,” and in December, 1898, made a visit of several months to his daughter in East Orange, New Jersey, “ on account of his sickness and for his health.” Further, her evidence discloses but one occasion upon which he was attended by a physician.

On this state of facts it is clear that the plaintiff cannot succeed. While it would indeed be venturesome under the nice and elaborate restrictions of the whole policy to assert under what circumstances an insured would not be met by some condition to bar recovery, it is certain that this plaintiff did not adduce testimony to meet the requirements of the quoted provision of the policy. He saw fit to enter into an agreement so phrased that his obligations were positive and that of the defendant optional. Gainor v. St. Lawrence Life Assn., 21 Misc. Rep. 27 . We are compelled to reverse the judgment.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, without costs to either party.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1916: 11919: 11934: 11935: 11941: 119162026peak 1916 · 1

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Gainor v. St. Lawrence Life Ass'n, 21 Misc. 27 (1897) 3

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