#### REDMOND v. INDUSTRIAL BEN. ASS’N.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

1. Life Insurance — Action on Policy — Certificate of Death.

In an action on a life insurance policy, a physician’s certificate of the cause of death, offered in evidence by plaintiff, does not bind plaintiff as an admission of all the facts recited therein, but is an admission only of the cause of death stated.

2. Witness—Testimony of Physician.

In an action on a life insurance policy, testimony of the physician of the insured as to what he treated her for before the policy was issued is, under Code Civ. Proc. § 834, which prohibits a physician to testify as to communications made to him by his patients, properly excluded, where the physician states that the information on that subject was necessary to enable him to treat the insured.

3. Same—Waiver of Privilege. '

Plaintiff in an action on a life insurance policy, by offering in evidence a certificate of the cause of death given by a physician of the insured, does not thereby waive the provisions of Code Civ. Proc. § 834, forbidding a physician to testify as to information received in the course of professional employment.

Herrick, J., dissenting.

Appeal from circuit court, Albany county.

Action by Patrick Redmond against the Industrial Benefit Association on a certificate of membership. From a judgment entered *1076on a verdict in favor of plaintiff, and from an order denying a motion to set aside a verdict, made on the minutes, defendant appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Walter S. MacGregor (William F. Beutler, of counsel), for appellant.

Jas. C. Matthews (Franklin M. Danaher, of counsel), for respondent.

MAYHAM, P. J.

The defendant, being a mutual co-operative association, organized under and in pursuance of the provisions of chapter 175 of the Laws of 1883, issued its certificate or policy of membership to Catherine Redmond, dated the 17th day of October, 1891, in class B of the association, and providing for the payment to the beneficiary of the amount therein named on proof of the death of the assured. On the 6th day of April, 1892, the assured died, and proof of the death was duly made, and presented to the association, which refused to pay the" amount of insurance on the ground that the representations of age and health contained in the application were untrue, and that the policy was for that reason void; and in this action, prosecuted by the plaintiff, as the sole beneficiary named in the policy, the defendant interposed such alleged false representation by way of defense.

It is quite true, as contended by the learned counsel for defendant, that the application, and policy issued by the company under it, constitute the contract of insurance, and that the insured, in entering into that contract, is subjected to- the terms, rules, and provisions of the by-laws of the company. Hutchinson v. Supreme Tent Co., 68 Hun, 355, 22 N. Y. Supp. 801; Smith v. Bown (Sup.) 27 N. Y. Supp. 11. Section 1 of article 7 of the by-laws makes the application upon which the certificate is based a part of the contract between the association and the assured, and provides that any fraudulent or untrue answers or statements made therein concerning the age, health, or condition of the person therein insured, or of any material fact, shall render the certificate issued thereon void. Such representations in the application are deemed a warranty, and their falsity, in an essential particular, a breach of the same, which renders the policy void. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654. If, therefore, by the undisputed evidence, the warranty in the application was false or broken, then the policy would be vitiated or void; and the beneficiary, in such case, could not recover. The only evidence in the case, so far as we can see, tending to show a breach of the warranty in the application, is that found in the proof of the death of the insured, offered in evidence by the defendant That proof consisted of a verified certificate of Dr. Boyd, filed by the plaintiff with the defendant, containing, among other things, the opinion of the doctor as to the cause of her death, and the diseases of which she died, and containing also a statement that in January, 1891, he prescribed for the insured for a 'disease described in the certificate as “renal calculi.” This certificate having been furnished by the plaintiff to the defendant, as one of the facts tending *1077to establish his right to the insurance fund, it was urged by the defendant as an admission that the insured had been, within five years prior to the time of malting her application, ill of some of the diseases referred to in her application, and consequently that her application was in that particular untrue, and her warranty broken. But it will be seen, by a comparison of the application with this certificate (if competent evidence upon the subject of the diseases of the insured), that the form »r is not contradicted by the latter. The evidence does not, in terms, establish that renal calculi was a disease of the urinary organs, existing at the time of the making of the application by the insured, and it was not error for the judge to so charge. Nor does the fact asserted in the certificate contradict any of the statements or warranty in the application. The questions propounded and answered in the application upon which a warranty can be predicated are as follows:

(7) Has the insured ever had a stroke of paralysis, apoplexy, or had cancer, or anything resembling the same? No. If yes, state fully. (8) Has the insured, during the past five years, had any of the following diseases? (Yes or No.) If yes, state fully Asthma? No. Liver complaint? No. Palpitation or disease of the heart? No. Bronchitis? No. Dropsy? No. Rheumatism? Yes. Disease of the urinary organs? No. Or any disease, ailment, or infirmity not mentioned herein? (9) Has the insured any ailment or infirmity at the present time? No. (10) Present state of health of insured is good. (11) Have any material facts relating to the bodily health or condition of the insured been omitted or suppressed? No.

None of these appear to be expressly proved untrue by the evidence offered on the trial, even if we regard the certificate of Dr. Boyd competent evidence, as an admission by the plaintiff. But we think that that certificate, so far as it tended to prove any fact acquired by the doctor in his relation as a physician for the insured before the issuance of the policy, was not proper evidence against the plaintiff on the trial, if objected to, under section 834 of the Code of Civil Procedure. The cause of the death was a pertinent inquiry, and, so far as the certificate proved that, it was competent evidence, as an admission by the plaintiff. Buffalo Loan, Trust & Safe-Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass’n, 126 N. Y. 450, 27 N. E. 942. But beyond that we do not think it bound the plaintiff, as an admission. Nor do we think his evidence that he prescribed for her in January, February, and March, 1891,. any evidence of a breach of the warranty contained in the application. There was no assertion in the warranty that she had not had the services of a physician within four years previous to the date of the application. This is not inconsistent with the determination of this court in Boland v. Association (Sup.) 26 N. Y. Supp. 433. In that case, Putnam, J., expressly disclaimed the conclusiveness of the certificate of death made by Dr. G-raveline, but put his decision upon the ground that the whole evidence upon the trial showed that the certificate was true. It wras therefore an open and disputed question of fact, in this case, whether or not the warranty made by the insured in her application was true, which was properly left by the trial judge to the determination of the iury, and his refusal to nonsuit the plaintiff was not error. Nor was *1078it error to exclude the testimony of Dr. Boyd, offered by the defendant, as to what he was treating the assured for in 1891. He testifies that his information upon that subject was such as was necessary to enable him to treat the insured professionally. That brought him clearly within the prohibition of section 834 of the Code of Civil Procedure, and rendered his testimony upon that subject inadmissible, and it was properly excluded by the court; the inquiry relating to a period subsequent to the issuing of the policy, and did not, therefore, prove the physical condition of the insured at the time of making and signing the application. That she was sick subsequent to that time raised no valid presumption against the truth of her representation in the application. Tucker v. Association, 133 N. Y. 548, 30 N. E. 723; Cushman v. Insurance Co., 70 N. Y. 72. Nor was the evidence auxiliary to, or explanatory of, the certificate of the cause of the insured’s death; and it was not, therefore, made necessary or proper by that certificate. By the introduction of that certificate the plaintiff did not waive the protection which she might claim under the provisions of section 834 of the Code. Nor did that certificate absolve the doctor from all the duties and obligations imposed upon him by that section. '

We think this action well brought, at law, to recover the amount, which, under this policy, was capable of being ascertained, liquidated, and reduced to a definite sum of money, the amount of which was capable of proof from the books of the defendant, based upon the receipts in the class in which this policy was issued; and the proof seems, in this case, to show that that amount had been definitely ascertained, and was disclosed to the jury by competent proof. And the money so set apart to meet this class of liabilities could be reached in this action, if not by execution, by proceedings supplemental to, or in aid of, execution. If the plaintiff is entitled, upon the merits, to judgment, we see no objection to a recovery in this form of action. The judgment must be affirmed, with costs.

PUTNAM, J., concurs. HERRICK, J., dissents.