#### Anna Megrue, Respondent, *v.*The United Life Insurance Association, Sued as United Life and Accident Insurance Association, Appellant.

*Action on a policy of life insurance*— affirmative *equitable defense*— *trial of the*cause— *necessity of putting the application in evidence.*

In an action brought to collect the amount due upon a life insurance policy, an affirmative equitable defense was pleaded, and the case was tried without objection at a Circuit Court, before the court and a jury.

*Held,*that a judge in an equity case can seek the verdict of a jury to inform his conscience.

That where in such an action the policy and admissions contained in the answer make out a *prima facie*case, it is in the discretion of the trial judge whether or not to require the plaintiff to put in evidence the application'for the insurance, and the defendant in such an action is not prejudiced by his refusal to so order.

*175Appeal by tbe defendant, tbe United Life Insurance Association, sued as the United Life and Accident Insurance Association, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of Kings on tbe 3d day of February, 1893, upon a verdict for $11,591.53, rendered at tbe Kings County Circuit, and from an order entered in tbe said clerk’s office on tbe 8th day of February, 1893, denying tbe defendant’s motion for a new trial made upon tbe minutes of tbe court.

*Henry Wilber,*for tbe appellant.

*Jam,es 0. Bergen,*for tbe respondent.

Pratt, J.:

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a new trial upon tbe minutes.

Tbe action was upon a life insurance policy and the defense was an affirmative one, based upon allegations that tbe deceased made false answers in bis application for insurance.

Tbe issues submitted to tbe jury were three in number, viz.: *First.*Whether tbe application for insurance was made December 31, 1889, or on January 9, 1890. *Second.*Was tbe deceased’s answer to question No. Yin bis application a true answer, and, *third.*Did tbe deceased make a true answer to tbe question, *“*Ha.ve you ever had any serious illness, local disease or personal injury ? ”

It is apparent, and the court so instructed tbe jury, that if they found in tbe affirmative upon tbe first question, *i. e.,*that tbe apph-cation was made on December 31, 1889, there was no occasion to consider tbe second question, as it was conceded that at that time there bad been no refusal by any other company to issue a policy upon any application made by tbe deceased.

Upon tbe first question there was much evidence taken, and it was of a highly contradictory character. We think, as the matter stood, tbe court properly submitted tbe case to tbe jury, and that their verdict must stand.

Tbe main issue was upon tbe third question, to wit, the physical condition of tbe insured at tbe time tbe insurance was effected.

The defendant assumed tbe affirmative upon tbe issue that tbe deceased falsely answered tbe question as follows: *“*Have you ever *176had any serious illness, local disease or personal injury ? ” Upon this issue much evidence was taken, and we cannot say there was any such preponderance of testimony as to require the court to take it away from the jury, and it is entirely clear that the verdict is sustained by the evidence.

But the defendant claims that inasmuch as an affirmative equitable defense was pleaded it was error to try the cause at Circuit with a jury.

One answer to this proposition is that it was tried at Circuit without objection, and another is that a judge in an equity case can seek the verdict of a jury to inform his conscience.

Another ground of error is that the plaintiff did not put in evidence the application for insurance made by the deceased. The policy, and the admissions in the answer and upon the trial, made out a *prima, faoie*case, and it was in the discretion of the judge whether to require the plaintiff to put in the application or not.

The defendant was not prejudiced by his refusal to so order.

It was preeminently a case for a jury to determine, as it involved disputea questions of fact and conflicting testimony, and the credibility of witnesses. There was evidence to support the contentions of both parties. Under such circumstances, the verdict must stand.

We have examined all the exceptions, and find no error sufficient to warrant a reversal of the judgment or the granting of a new trial.

The judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment and order denying new trial affirmed, with costs.