The plaintiff is a physician and a member of the Rudolph Virchow Medical Society of the City of New York. On June 15, 1946, he made application for group insurance and a policy was issued to him. He informed the defendant's agent of his physical condition at the time of the application and was assured he was eligible under the group plan.
On November 22, 1948, plaintiff sustained bodily injury as a result of an accident and became incapacitated for 18 weeks, and under the terms of the policy he became entitled to $900, at the rate of $50 per week. Plaintiff filed the necessary forms and received $150 for three weeks. Defendant refused to make further payments. Plaintiff had paid premiums from June 15, 1946, until December 3, 1949, when the defendant
returned a tendered premium. Plaintiff sues for the $750, alleged to be due him under the policy.
Defendant contends that plaintiff was not regularly attending all the duties of his profession on June 15, 1946, as required by the policy, and is, therefore, not entitled to benefits. The following questions and answers appear in the application for insurance:
Question No. 9: "Have you been disabled by either accident or illness or received medical attention during the past five years?"
Answer: "Yes, coronary attacks Nov. 1944; May 1945, coronary thrombosis and infarction."
Question No. 11: "Are you now in sound condition physically and mentally?"
Question No. 12: "Do you understand that this application is subject to acceptance by The Metropolitan Casualty Insurance Company, of New York, and that the insurance hereby applied for will not be effective unless you are regularly attending all of the usual duties of your occupation on the countersignature date of the policy?"
The two asterisks (**) in No. 12 refer to the answer to ...