Baum v. Equitable Life Assurance Society of United States , 148 Misc. 322 ( 1933 )

Per Curiam.

Under the provisions of the policy the plaintiff is not precluded from recovering for disability resulting from disease by reason of the fact that he was confined in prison during the period of disability. We construe the policy as providing for compensation for the disability rather than for indemnity for loss of earnings (Suttles v. Railway Mail Association, 156 App. Div. 435), and we construe the provision of the policy that the disability must be such as to “ prevent him from performing any and every duty pertaining to his occupation ” as descriptive of the disease which shall entitle the plaintiff to disability payments.

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

All concur; present, Levy, Callahan and Untermyer, JJ.