Holden v. . Metropolitan Life Insurance Company

Martin, J. On the trial, at the close of the testimony, the court directed a verdict for the defendant. An appeal from the judgment entered thereon was taken to the Appellate Division where it was affirmed. The plaintiff then appealed to this court. The appeal was argued at the October term, and in November a decision was handed down unanimously reversing the judgment. The defendant now moves for a reargument upon the ground that the court has overlooked questions which were decisive of the case and required an affirmance. We find no sufficient ground to justify that claim. None of the questions presented by counsel was overlooked. While all were considered, we did not deem it necessary to further discuss them in the opinion. The conclusion reached was that the judgment should be reversed and a new trial granted. This included a determination of every question necessary to that result. While it seemed proper to specially consider the statute relating to privileged communications in view of its recent amendment, none of the other questions seemed to require special discussion. The claim of the respondent that the court was justified in directing a verdict in its favor upon the ground that there was a warranty contained in the policy that no brother of the assured had died of consumption, and that a breach of that warranty was conclusively established, cannot be sustained. We are now of the opinion, as we were when this case was previously decided, that under the proof the court was not justified in holding as a matter of law that there was any such *648 breach of warranty, or that the defendant was entitled to the direction of a verdict upon that ground. The motion should be denied, with ten dollars costs. Parker, Ch. J., Gray, Bartlett, Yank, Cullen and Werner, JJ., concur. Motion denied.