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Appellate Terms of the Supreme Court of New York, 1935

Wenger v. New York Life Insurance

Wenger v. New York Life Insurance
Appellate Terms of the Supreme Court of New York · Decided March 21, 1935
155 Misc. 163; 279 N.Y.S. 72; 1935 N.Y. Misc. LEXIS 1777

Counsel

Louis H. Cooke [Lee M. Gammill of counsel], for the appellant., Max I. Goldman [Bernard B. Lieberman of counsel], for the respondent.

Wenger v. New York Life Insurance

Opinion of the Court

Per Curiam.

In order for plaintiff to recover it was necessary for him to establish not only that he was totally disabled from *164following Ms usual occupation, but also that he was totally disabled from followmg any occupation for remuneration or profit wMch under all the circumstances he was physically and mentally fitted to follow. (Garms v. Travelers Ins. Co., 242 App. Div. 230; affd. without opinion, 266 N. Y. 446.) TMs plaintiff failed to do. Moreover, the court’s charge upon request of plaintiff that “ any occupation ” meant Ms usual occupation, constituted prejudicial error.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

All concur; present, Lydon, Frankenthaler and Shientag, JJ.

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