#### Nancy B. Linzee, Respondent, *v.*Frankfort General Insurance Company of Frankfort-on-the-Main, Germany, Appellant.

Second Department,

May 8, 1914.

Insurance — indemnity against loss by burglary — pleading — reply — review by Appellate Division — defenses — issuance of policy where answers to interrogatories are not responsive — fraudulent overstatement of loss.

The Appellate Division has power to review an exercise of discretion by the court below in not requiring a plaintiff to reply to defenses which are apparently good by way of avoidance.

Where interrogatories answered by an applicant for insurance against bur.glary, and which are made part of the policy, required the applicant to state her “occupation” and she answered “widow,” the reply was not responsive; and where the insurer issued the policy without requiring a more explicit answer, it cannot, when sued upon the policy, set forth said defect as a defense, although the insured was not in fact a widow. This, because there was no warranty, but a mere representation.

In an action on such policy a defense alleging a fraudulent overstatement of the loss by the plaintiff does not constitute new matter, and hence does not call for a reply as it would merely reiterate the allegations of complaint as to the amount of loss.

Appeal by the defendant, Frankfort General Insurance Company of Frankfort-on-the-Main, Germany, from an order of the Supreme Court, made at the Kings County Special Term *283and entered in the office of the clerk of the county of Queens on the 15th day of October, 1913, denying the defendant’s motion to compel plaintiff to reply to the first and second separate defenses set up in the answer.

*Joseph L. Prager [Sidney S. Levine*with him on the brief], for the appellant.

*Samuel H. Wandell,*for the respondent.

Putnam, J.:

Defendant’s policy, issued to plaintiff, insured her against loss by burglary, larceny or theft of money or effects in her residence at 8 Thirty-first street, Whitestone, L. I. Her complaint annexed a copy of the policy, which has a recital that it is made in consideration of the statements in the schedule, *“*which statements the assured makes and warrants to be true by the acceptance of this policy.”

Defendant’s answer, admitting the issue of the policy, with denials as to the loss, sets up as separate defenses, *First,*that plaintiff warranted her occupation was that of a widow, whereas in fact her husband was still living; *second,*that plaintiff has overstated her loss by a fraudulent claim, made up so as to cheat and defraud defendant.

Defendant’s application to require plaintiff to reply under section 516 of the Code of Civil Procedure was denied by the court at Special Term, and from this order defendant appeals.

If these defenses are apparently good by way of avoidance, we have power to review this exercise of discretion by the court below, *(Schweitzer*v. *H. A. P. A. Gesellschaft,*149 App. Div. 900; *Weglein*v. *Trow Directory, P. & B. Co.,*152 id. 705, 709.)

An insurance warranty, being a part of the contract, must be in the policy itself. *(Pawson*v. *Watson,*Cowp. 785.) By way of particular description, condition or otherwise, it states the agreed limits of the obligation as a finality, which excludes all argument as to reasonableness or probable intent of the parties. Here defenses are based on such warranties, by printed specifications with the written answers (in a schedule which in form resembles application for insurance), but are all expressly *284incorporated by reference in the policy. Some of these specifications are answered by “yes” and “no;” others draw forth longer explanations.

After defendant’s interrogatories had related to the character of the premises, and how occupied, inquiries follow as to the business address, and then the occupation,' of the assured. The specification as to her business address was left blank; but in the space after assured’s occupation was written the word “ widow,” plainly not responsive. As applied to a person, occupation is the means followed to gain a livelihood as a business or employment. Whether a person be married or single — one whose former marriage had been dissolved by death or by decree — is impertinent to such inquiry as to occupation of the assured. Hence, “ widow ” may have been written not as an answer but as a reason for not answering. If the insurer’s specification had not been properly met, so that the answers were incomplete, it might decline to issue its policy unless it had these particulars *(Dohn*v. *Farmers’ Joint-Stock Ins. Co.,*5 Lans. 275, 278; *Mulville*v. *Adams,*19 Fed. Rep. 887, 891); but it cannot stand on such defects after the policy has been issued. In *Higgins*v. *Phoenix Mutual Life Ins. Co.*(74 N. Y. 6, 9) it was said: “ The answer is not responsive in terms to the interrogatory, and does not profess to give the information asked. If it was not satisfactory to the defendant, a fuller and more explicit answer should have been required.” (See, also, *Carson*v. *Jersey City Ins. Co.,*43 N. J. L. [14 Vroom] 300; 2 Cooley Ins. 1149, 1150.)

Writing into this schedule matters which did not touch the question that defendant asked is not a meeting of the minds. And if the minds did not meet there can be no warranty. As the basis for a warranty fails, the personal disclosure thus volunteered at most had but the effect of a representation. Hence, the matter set up as a first defense is not well pleaded, since the terms of the schedule annexed to the policy show no warranty as to whether or not plaintiff was in fact a widow. The present answer does not plead such misstatement as a representation, because it is not alleged to have been material to the risk, and relied upon by defendant in issuing its policy.

*285The second defense (fraudulent overstatement of loss) calls for no reply. It is not new matter. A reply denying such overstatement would simply reiterate the allegation of the complaint as to the true amount of the loss. *(Burr*v. *Union Surety & Guaranty Co.,*86 App. Div. 545; *Sullivan*v. *Traders’ Ins. Co., 169 N.*Y. 213.)

I advise that the order he affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Carr and Stapleton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.