#### Wolf Silverman, Respondent, *v.*The Empire Life Insurance Co., Appellant.

(City Court of New York, General Term,

August, 1898.)

Life insurance — Breach of warranties — Where the application is made a part of the policy, it should be admitted in evidence.

Where an action upon a policy of life insurance is defended, among other things,' for breaches of express warranties of the application, it is erroneous for the court, where the policy makes the application a part of the policy, to permit the plaintiff to put in evidence the policy only and to omit to offer the application; and such a course is particularly objectionable where the second part of the application, subsequently offered in evidence, identifies the first part, in regard to which first part some answers of the insured to material questions were concededly false.

Appeal from a judgment in favor of plaintiff entered on a verdict and from an order denying a motion for a new trial.

Blandy, Mooney *&*Shipman (Edmund Luis Mooney and F. A. Card, of counsel), for appellant.

Abraham A. Joseph (Arthur Furber, of counsel), for respondent.

*400Olcott, J.

This is an appeal hy .the defendant from a judgment for $1,841.15 in favor of the plaintiff,' entered on the verdict of the jury at a trial term of this court, and also from an order denying a motion for a new triaL

The action was brought to recover the sum of $1,500 on a policy of insurance issued by- the defendant on the life of one Annie Silverman, the alleged wife of the plaintiff, and payable to him in case of her death.

The complaint alleged the incorporation of the defendant, the issuance of the policy (a copy of which was annexed to and made a part of the complaint), payment of the premium, the death of Annie Silverman on June 29, 1895, the refusal of the defendant to deliver proofs of death on request, compliance by the plaintiff with all the terms and conditions of the policy, and the refusal of the defendant to pay after demand.

The defendant’s answer admitted the incorporation of the defendant, the issuance of a paper similar in form to policy annexed to' the complaint, the payment of the premium, application of the plaintiff for proofs of death and nonpayment, and denied the compliance by plaintiff with all the terms and conditions of the policy,, and all allegations of the complaint not expressly admitted or denied.

The issues raised by this part of the answer were'the death of Annie Silverman, the refusal of the defendant to deliver proofs of death, and the compliance by plaintiff with all the terms- and conditions of the policy.

The .answer also sets iip as a separate defense that the policy was issued pursuant to and in reliance on a written application theretofore made by a person representing herself to be the wife of the plaintiff, which application provided that all answers and statements therein were warranted to be full, complete and true¿ and that if any untrue answer or statement were made, or any facts which should have been stated were suppressed, the policy should be null and void; that the answers and statements in said application were not full, complete or true; that facts that, should have been stated to defendant were suppressed; that all the terms and conditions of the agreement and application have not been fulfilled as required by the policy;' that the person who made the application was not the wife of the plaintiff and did not die on June 29, 1895; and that Annie .Silverman, mentioned in the complaint as having died on that day, was not the person insured or intended to be.

*401The issues thereby raised were breach of warranties in the answers and statements in the application, suppression' of material facts, and a fraudulent substitution of one person for another as the insured.

The answer also sets up a second separate defense, and the issues raised by this part of the answer were breaches of warranties as to the health and condition of the applicant in the particulars specified.

On the trial, although, by the policy, the application was expressly made part of the insurance contract, the court allowed the plaintiff to put in evidence the policy only, without the application, against the defendant’s objection.

The main issue litigated was whether the person who made the application, and was examined and intended to be insured, was the same person who died on June 29, 1895, and on whose death the plaintiff based his right to recover, and counsel for the. appellant offers a forcible argument in support of the proposition that, on this point, his motion to set aside the verdict as against the weight of evidence should have been granted, which, however, we refrain from passing upon in view of our opinion-upon the other points raised, and because certain features of the evidence — *i. e.,*the color of the lock of hair introduced in evidence and the question of how far it corroborated the testimony of Dr. Bryan — could best be judged by the learned trial justice.

But the other issues were also litigated, and it appears to us that there had been breaches of the warranties contained in the policy and application which avoided the policy and precluded any recovery by the plaintiff.

We think the learned court erred in not admitting the whole of the application upon which the policy in suit was founded; first, because the application is by the express provision of the policy made a part of itself, and the policy was received in evidence so that to exclude the application was, in fact, admitting a part only of the contract sued upon, and excluding a material part thereof; and, secondly, because part 2 of the application, which was duly proved and admitted, duly identified part 1 thereof by the insured’s declaration “I am the person who signed the application on the reverse side hereof.”

It is true that counsel for the defendant was permitted to bring out the questions and answers contained in part 1 of the application, but in no way could he succeed, under the rulings' of *402the court, in showing, as we think he had a right to show, that the applicant had signed the agreement, warranties and waivers which followed the'questions and answers on part 1 of. the. application, and which constituted the contract on behalf of the. applicant.

With the whole of the- application in evidence, it would have followed that the complaint must have been dismissed or a verdict directed in favor of the defendant. For part 1 of the application, contained the following questions and answers:

“ 10. Has any proposal to insure your life ever been postponed or declined? If so, by what company, association or society, and for what reason? Ans. No;

“ 11. Has any proposal or application to insure your life,'or for membership, ever been made to any company, association, society or agent upon which a policy or certificate of membership has not been received by you in person for the full amount and kind and at rate applied for?. Ans. No.

“12. Has any physician given an unfavorable opinion upon your life with'reference to life insurance or otherwise? If so, state particulars. Ans. Never.”

And, on the trial the foregoing answers were shown by uncontradicted evidence to have been false-, and the plaintiff so admitted.

There was here such a breach of warranty as would avoid the plaintiff’s claim. Studwell v. Mutual Ben. Life Ass’n, 19 N. Y. Supp. 709; Cushman v. U. S. Life Ins. Co., 63 N. Y. 404; Foot v. Aetna Life Ins. Co., 61 id. 571; Clemans v. S. A. R. Soc. Co., 131 id. 488; People v. Commercial All. L. Ins. Co., 21 App. Div. 538.

We think this issue was sufficiently raised b.y the pleadings; and at all events it was litigated at the trial without objection and is now properly before us. Tarbell v. Royal, etc., Co., 110 N. Y. 170, at .p. 181; Wells v. World Ass’n, 120 id. 630.

Upon the grounds above stated, we think that the judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Conlan, J., concurs.

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