Robinson v. Equitable Life Assurance Society of United States , 155 Misc. 583 ( 1935 )

Per Curiam.

Total and permanent disability is such as renders the insured unable to carry on the occupation in which he had been trained and worked, or employment in work of the same general character where he may be gainfully employed in an occupation reasonably comparable in type and remuneration to that in which he was employed at the time of the claimed disability. (Arico v. Prudential Ins. Co., 241 App. Div. 826.) The portion of the trial justice’s charge which stated it was not necessary for the plaintiff to be unable to perform any work, but simply to be unable to perform a substantial part of his ordinary business or occupation, constituted prejudicial error.

The statements by plaintiff in applications for operator’s licenses, in effect that he had not suffered any physical or mental disability (during the time of the disability claimed in the action), are not conclusive in the sense that the defendant, on proof of same, was entitled as matter of law to the dismissal of the complaint. Such admissions went to credibility, and defendant was entitled under appropriate instructions to have the effect thereof upon the credibility of plaintiff’s claim of disability submitted to the jury.

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

All concur; present, Hammer, Callahan and Shientag, JJ.