#### Cora DeNoyelles, Appellant, *v.*The Delaware Insurance Company of Philadelphia, Respondent.

(Supreme Court, Appellate Term, Second Department,

December, 1912.)

Insurance (life) — acceptance and delivery of premium — action on policy — breach of warranty.

Evidence — exclusion of — contradiction of witness.

Where, on the acceptance of the premium and delivery of a policy of life insurance, the company has knowledge that the insured premises were not used exclusively for dwelling purposes, a warranty to that effect, stamped on the face of the policy before delivery, is waived.

Where in an action on the policy the defense is breach of warranty, the question as to whether the person who brought plaintiff the policy and collected the premium was the agent of defendant being peculiarly within its knowledge, plaintiff should have been permitted to testify that said person solicited the insurance, that she neither paid him a commission nor authorized him to sign an application for insurance.

Where the testimony of an agent of defendant called by plaintiff furnished evidence that he had in his possession certain maps and cards, showing the occupancy of the building, which were kept to inform him of the occupancy when the policy was issued, and said maps and cards were not produced after the service of a subpoena *duces teeum,*plaintiff had the right to prove their contents by secondary evidence; and it is error to exclude the testimony of another witness as to whether he examined the map in the office of the other witness, showing the character of the occupancy of the building insured, as such testimony was competent, relevant and material and did not tend to impeach the other witness.

Evidence relevant to an issue formed by the pleadings cannot be excluded because it contradicts another witness called by the same party whether such witness is hostile or friendly.

Appeal from a judgment rendered in favor of defendant.

William P. Hamilton, Jr., for appellant.

House, Grossman & Vorgaus (Charles Goldzier and Samson Selig, of counsel), for respondent.

*650Blaoicmar, J.

The plaintiff sought to recover for loss on an insurance policy. The defense was a breach of a covenant of warranty. The trial was before a jury and at the end of defendant’s case the complaint was dismissed. The judgment, therefore, can be sustained only if the defense was established as matter of law on undisputed evidence.

When the policy was delivered to the plaintiff, there were stamped on its face the words “ Warranted b.y the assured that the within described building is occupied exclusively for dwelling purposes by not more than two families.” In fact, the plaintiff was carrying on a manicuring business, and there was also a retail drug store in the building at that time. If the quoted words expressed the contract governing the rights of the parties, there was -a breach of the warranty and the judgment is right.

We cannot read this clause as suggested by plaintiff’s counsel. There is no substantial ambiguity in it. It means, primarily, that the building was used exclusively for dwelling purposes.

But if the defendant had knowledge at the time it accepted the premium and delivered the policy that the premises were not used exclusively for dwelling purposes, the warranty was waived. For the purpose of applying this rule, knowledge of the company’s agent is knowledge of the company. Haight v. Continental Insurance Co., 92 N. Y. 51; Woodruff v. Imperial Fire Insurance Co., 83 id. 133. As is said in McNally v. Phoenix Insurance Co., 137 N. Y. 389, “ When a policy is issued with full knowledge on the - part of the underwriter of facts in direct conflict with the statement on the same subject in the application it is reasonable to assume that there was no intention to insist upon the condition, or claim a forfeiture under it.” The plaintiff was entitled to show knowledge of the occupancy of the building at the time of the issuance .of the policy by the company or by FTewman & McBain, its resident agents; and, if the evidence raised a question of .fact, she was entitled to have it submitted to the jury. This is not the question of the warranty of a *651fact peculiarly'within the knowledge of the plaintiff. That there was a drug store in the building was open and obvious even to a passer-by in the street, and yet, by a rubber stamp placed on ike policy, the defendant makes the plaintiff represent that there was no drug store or manicuring there. It is obvious that she did not mean to so represent; but she is held to do so because she accepted the policy with those words scamped on it. The plaintiff could avoid the fatal effect of this inference only by establishing the facts warranting another inference, viz., that the defendant had waived the warranty. This may be successfully established by showing that the company, or its agents, had knowledge of the facts.

We find on examining the record that the plaintiff was_ hampered in her attempt to show this knowledge on the part of the underwriter by untenable objections to the admission of evidence. It was an important question whether the person who brought the policy to the plaintiff and collected the premium was an agent of the company, for he came into the building and necessarily knew its occupancy; but the plaintiff was not permitted to testify that he solicited the insurance, nor that she did not pay him a commission, nor that she did not authorize him to sign an application. To all these rulings the plaintiff excepted. Whether this person was the agent of the company or not was peculiarly within the knowledge of the defendant. Under these circumstances, slight evidence of acts of agency would be sufficient, in the absence of contradictory evidence. The plaintiff also sought to establish this knowledge by calling Walter McBain, one of the company’s agents, and presumably a hostile witness. The purpose was to show that he had maps and cards in his possession showing' the occupancy of the building which were kept for the purpose of informing him, and presumably did inform him, of the occupancy when the policy was issued. If this had been shown, the question of waiver of the warranty would have been for the jury. The plaintiff had demanded these papers by a notice to produce and had sought them by a subpoena *duces tecum*served on the witness McBain. ¡Nevertheless, *652they were not produced. The testimony of this witness, read in the light of the attitude and concessions of his counsel, furnished some evidence that there were such maps and cards in the agent’s possession. As they were not produced, the plaintiff had the right to prove their con-, tents by secondary evidence. For that purpose, he called as a witness an insurance broker named Armstrong, who was shown to have knowledge, and asked him this question, “ Did you examine the map in the office of Newman & McBain showing the character of the occupancy of No. 259 Ryerson street?” The defendant’s counsel objected to the evidence as immaterial, irrelevant and incompetent. The objection was sustained and plaintiff excepted. The •defendant’s counsel then added, “And if offered for the purpose of showing that there was a map, I object on the ground that he is impeaching his own witness.” The plaintiff’s counsel said: “He was a hostile witness,” to which the court rejoined, “I cannot assume'that, you offered him and vouched for him; I will sustain the objection,” and plaintiff excepted. This, we think, was error. The evidence that there were maps in the office of Newman & McBain, showing the occupancy of the premises in question and kept for the purpose of giving them knowledge to guide in determining whether they would accept offered risks, was competent, relevant and material. Neither did the evidence impeach the witness McBain. To contradict is not to impeach. Evidence relevant to the issue formed hy the pleadings cannot be excluded because it contradicts another witness called by the same party, whether such witness is hostile of friendly. Impeaching evidence is that which is directed solely to the question of the credibility of the witness.

The plaintiff should be permitted to offer any evidence which she may have relevant to the question whether defendant, when the policy was delivered, had knowledge that there were a drug store and a manicuring establishment in the building, and, if there be any legal evidence tending to show such knowledge, the case should be submitted to the jury.

*653The judgment is reversed and new trial ordered, with costs to abide the event,

Maddox and Putnam, JJ., concur.

Judgment reversed and new trial ordered, with costs to abide event.