#### HAYES v. SARATOGA & W. FIRE INS. CO.

(Supreme Court, Appellate Division, Third Department.

March 11, 1903.)

1. Insurance — False Statements in Application.

Where an applicant for fire insurance, who could not read writing, answered truthfully the questions put to him by an authorized agent of the company, as a basis of insurance, and such agent inserted false answers in the application, their falsity was no defense to an action on the policy.

*8892. Same — Transfer of Policy.

An insured building was sold by the owner’s receiver, and the policy transferred to the purchaser by the insurance company. Subsequently plaintiff acquired the building through two intermediate transfers, of ail of which the company was informed, and assented to the assighinent. *Eeld,*that the company thereby consented to continue the insurance on the building, with plaintiff as owner, as effectually as if a new policy had been written in her name.

Appeal from Trial Term, Saratoga county.

Action by Johanna Hayes against the Saratoga & Washington Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

One Randall is the agent of the defendant, a co-operative fire insurance company, and has authority to solicit business, make out applications for insurance in defendant company, deliver policies, and collect premiums.

Michael Oonnery, in 1899, was the owner of a building situated on leased land in Saratoga, N. Y., on which building were three policies of insurance, aggregating $4,100. In April or May, 1899, Randall came to Connery and said that he had had some talk with one Burke, a collector of premiums for defendant, and also with a brother of Connery, in regard to taking out more insurance on Connery’s building. Connery told Randall that he had insurance enough, that it cost him too much to keep his insurance up, and that if there was a fire he would not get anything. Randall told him that it was all right, and that it would only cost half as much in his company as in the other companies. Connery can read print some, but cannot read writing. He consented to take a policy in the defendant company, and signed the application produced by Randall. The evidence is sufficient to sustain a finding that Randall asked Connery how much insurance was on the property, and Connery replied that he did not know exactly, but would show him the policies, and that he did show him the policies, and Randall looked them over; that he also told Randall that Mr. Hayes had a mortgage on the property of $1,000, and Mr. Hefferman one of $800; and that a couple of days later Randall came back to Connery and asked him if the building was on leased land, and whether he had ever had a loss by fire; and that the questions were correctly answered. Randall wrote out the answers to the application signed by Connery, and the material questions and answers are as follows:

“(1) Are you the sole and undisputed owner of the property? No. (2) If a building, do you own the land on which it stands? No. (3) Incumbrance —If any, state amount, and to whom? $1,000, James Hayes. (4) What is the present cash value of the property to be insured? $7,000. (5) How much other insurance on the property? $1,000. (6) In what companies, and at what rate? Commercial Union.”

This application, although made in 1899, was dated by Randall April 11, 1897. On or about May 1, 1899, the defendant executed and delivered to Connery a policy of $1,500. On or about May 1, 1900, a renewal policy was executed and delivered to him. The premiums on each of these policies was paid to Burke for the defendant. Thereafter a judgment was obtained against Connery, and an execution thereon was returned unsatisfied. On September 28, 1900, one Frank M. Jenkins was appointed receiver in proceedings supplementary to said execution.

On the 18th day of October, 1900, the secretary of the defendant indorsed on the policy: “Said policy this day transferred to Frank M. Jenkins, receiver.” Thereafter, and on October 31, 1900, Jenkins, as receiver, sold the building to James T. Brusnihan, and on the following day Brusnihan sold the building to the plaintiff. The several transfers were reported to said Burke, a collector for the defendant, and at whose place of business Randall had an office when in Saratoga. Burke telephoned to the home office of the defendant reporting the several transfers. Burke was answered from the home office, either by Allen, secretary of the company, or by Randall, who seems to have spent a portion of his time in the defendant’s home *890office. He was told from the home office to send the policy to them.' Burke, obtained the policy from Connery, and sent it to the defendant.' The defendant remailed it to Burke, with directions to have Connery sign his name on the back. This was done, and the secretary of the company then, in writing on the policy, consented that the interest of Michael Connery be assigned to Johanna Hayes, thé plaintiff. On the 18th' day of March, 1901, the building was wholly destroyed by fire. The ' total insurance thereon amounted to $5,600. The plaintiff claimed that the total loss was $4,100, and the insurance companies, other than the defendant, paid their proportionate amount of such loss, aggregating $2,829.57. The defendant refused to pay its proportionate part of said loss, and this action was brought to recover the balance of $1,071.43. Judgment was rendered against the defendant for that amount and costs.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and LYONS, JJ.

Ostrander & Salisbury (William S. Ostrander, of counsel),, for appellant.

William D. McNulty, for respondent.

CHASE, J.

The applicant for insurance could not read writing. In response to the questions propounded by the representative of the defendant, he gave truthful answers. Where the insured gives true answers to the questions put to him as a basis of insurance, and an authorized agent of the insurance company inserts in the application false answers, the company, and not the insured, is responsible for their falsity; and their falsity is no defense to an action upon the policy. O’Brien v. Home Benefit Society, 117 N. Y. 310, 22 N. E. 954; Sternaman v. Met. Ins. Co., 170 N. Y. 13, 62 N. E. 763, 57 L. R. A. 318, 88 Am. St. Rep. 625; Mead v. Saratoga & Washington Fire Ins. Co. (Sup.) 80 N. Y. Supp. 885.

It does not appear, other than from the written application, that the applicant made any statement in regard to the value of the building. Ordinarily, a statement of value is a mere matter of opinion. Dacey v. Agricultural Ins. Co., 21 Hun, 83; Smith v. Home Ins. Co., 47 Hun, 33.

The indorsement on the policy by the defendant, consenting to its transfer by Connery to plaintiff, was made after information of the several transfers of the building, and in the.face of its former recognition of Jenkins, as receiver, as the owner of the policy. The policy was assigned in the manner directed by the defendant. Plaintiff was then the actual owner of the building, and defendant should be held to have consented to continue the insurance on the building, with the plaintiff as the owner, as effectually as if a new policy had then been written in her name. Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526, 7 Am. Rep. 380.^

Judgment should be affirmed, with costs. All concur.

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 1. See Insurance, vol. 28, Cent. Dig. § 999.