#### Edward A. Becker, Executor, Plaintiff, *v.*The Colonial Life Insurance Company, Defendant.

(Supreme Court, Kings Special Term for Motions,

January, 1912.)

insurance — Requisites and validity of contract — Application for in- " -surance and agreement to insure.

Pleading — *Motion to*strike out allegations of an answer in an action upon policy of life insurance.

In accordance with section 58 of the Insurance Law (Laws of 1906, chap. 326, § 16) every policy of life insurance issued in this State since January 1, 1907, should set forth plainly on its face the contract of insurance and the consideration therefor, including -any statements or representations leading the company to enter into the agreement.

Allegations of an answer in an action upon a policy of life insurance issued in this State since January 1, 1907, of misstatements made by the insured to defendant’s medical examiner and that they were made fraudulently with intent to deceive and that they did deceive the defendant will be stricken out on motion upon the ground that the medical examination of the insured and the questions and answers at such examination are in no way referred to in the policy.

*Semble,*that to allow the insurance company to avail itself of such matters would be to defeat the legislative intent of said section 58. “

¡Motion to strike out certain allegations in an answer.

H. H. Glass, for plaintiff.

■ ¡Maguer & Oarew, for defendant.

¡Kelly, J.

I think the plaintiff’s motion to strike out the allegation in the answer relating to the statements said to have been made by the assured to the medical examiner must be granted.

The action is brought upon a policy of insurance issued by the defendant upon the life of plaintiff’s testator and payable to Ms executors. The policy is set forth at length, a copy 'being attached to the complaint; and all the facts alleged in *214the complaint are admitted. Defendant, after pleading alleged misstatements by the assured in the application for insurance, which is referred to in the policy and a copy of which was printed therein, sets up, in addition, alleged misstatements made to the defendant’s medical examiner; and defendant alleges that the misstatements were made fraudulently, with intent to deceive, and that they did deceive, the defendant.

The plaintiff moves to strike out these statements to the medical examiner, because the medical examination and the questions and answers at such examination are in no way referred to in the policy of insurance. Such is the fact, and I am free to say that it appears unusual that no reference is made to the statements made to the medical examiner, or to the medical examination, either in the policy itself or in the application. These statements or the examination is. not referred to as a basis or consideration for the issuance of the policy. In 1906, the Insurance Law of this State was amended (Laws of 1906, chap. 326, § 1-6) by the insertion of section 58, which expressly provides that every policy of life insurance issued after January 1, 1907, “ shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, applications or other writings unless the same are endorsed upon or attached to the policy when issued; and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties. Any waiver of the provisions of this section shall be void.” I think the manifest intention of the Legislature was to require that corporations engaged in this kind of business should set forth plainly, on the face of the policy, the contract of insurance and the consideration therefor, including any statements or representations leading it to enter into the agreement. The form of the policy, its preparation, etc., are left to the insurance company. If the statements made at the medical examination are important, it is very easy to refer to them. That the provisions of the statute were before the parties is indicated by the conditions printed on the policy, as follows. “ Entire Policy — This policy and the *215application therefor, a copy of which is indorsed hereon, constitute the entire contract between the parties hereto; and all statements purporting to be made by the insured shall, in the absence of fraud, be deemed representations and not warranties.” As already stated, there is no word referring to the medical examination or answers made to the medical examiner.

It seems to me, that to allow the defendant to avail itself of matters not referred to in the policy would be to defeat the intention of the legislative enactment, which was designed to stop this very thing. _ The learned counsel for defendant urges that the law does not require the company to print the medical examination or to refer to it. That is true, but it does say that, if the company relies upon the examinav tion, or if false statements made thereon are to be availed of as a defense, then the medical examination must be referred to.

While no decision can be found in this State on this question, similar statutes have been construed in accordance with - the views above expressed in Ruen v. Prudential Ins. Co., 129 Iowa 729; Kirkpatrick v. London Co., 139 id. 370; Imperial Ins. Co. v. Dundam, 115 Penn. 460. It is the duty of the court to give effect to the statute and to so construe it that this reasonable and salutary improvement in the law shall be carried out.

The motion is, therefore, granted.

Motion-granted.