
    Mary Spencer, Resp’t, v. The Citizens’ Mutual Life Insurance Association, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 5, 1894.)
    
    Evidence—Burden—Affirmative defense.
    The burden of proof is upon a defendant to establish an affirmative defense set up in his answer. This burden is not changed by the presentation of evidence which presumptively establishes the defense.
    Appeal from a judgment of the general term of the superior court of the city of New York, entered upon an order made April 4, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    This was an action upon a policy of insurance issued by defendant upon the life of John L. Spencer, the husband of the plaintiff; she was named therein as the beneficiary.
    It appeared that the defendant failed to pay a premium which-became due February 9, 1890, in consequence of which default the policy lapsed. The decedent, in order to renew his policy and induce the defendant to accept the overdue premium, made, and on February 13, 1890, delivered to the defendant a warranty in writing, in the form of an application for re-instatement, in which he declared that he was then in sound health and free from any symptoms of disease, and there was then no condition of his person or occupation tending to impair his health, injure his constitution or shorten his life, and that he had not been sick or required the services of a physician, and that there had been no change in his family history or physical condition since the date of said policy. The defendant thereupon accepted the overdue premium and re-instated the policy.
    The defense is that the statements and warranty aforesaid were false and untrue.
    The further material facts are stated in the opinion.
    
      Louis C. Whiton, for app’lt; Carlton P. Pierce, for resp’t.
    
      
      Affirming 52 St. Rep. 442.
    
   Andrews, Oh. J.

The insured, John L. 'Spencer, in his application for re-instatement dated February 13th, 1890, warranted that he was in sound health, and a breach of this warranty was the defense on the trial. The insured died May 7th, 1890. The plaintiff is the widow oí the insured and the beneficiary named in the policy. The policy was for $3,000, and the company bound itself thereby to pay out of the death fund to the plaintiff the said sum “upon acceptance of satisfactory proof at his home office of the death of John L. Spencer during the continuance of the policy.’’ The plaintiff on or about the 13th day of August, 1890, delivered to the defendant proofs of the death of the insured, consisting of verified anwers to questions prepared and furnished by the company. One series of questions were answered by the claimant and another by the attending physician of the deceased. In both series the affiants in substance declared in answer to questions upon the point that the illness of which the insured died commenced February 6th, 1890. The physician stated that the immediate cause of his death was “acute Bright’s ■disease of the kidneys,” and that his sickness commenced with a catarrhal cold. It does not appear that an action was taken by the company on receipt of the proofs delivered on the 13th of August, either by way of acceptance or rejection. Subsequently, in November and before the commencement of the action, supplementary affidavits of the plaintiff, the attending physician and the daughter of the deceased, were served on the ■company, correcting the statement made in the affidavits previously served and fixing the time when the last illness of the deceased commenced as the 16th of February instead of the 6th of February, the date specified in the former proofs, and explaining the discrepancy. The explanation in substance was that the date in the first instance was fixed by reference to a memorandum of professional visits made by the physician to the family of the deceased, and that the entry of February 7th related to a visit made on account of the illness of the daughter and not of the father, who was then in good health and so remained until February 16th. On the trial the physician and the daughter of the deceased were sworn and gave evidence tending to confirm the facts stated in the supplementary affidavits. The plaintiff was not sworn on the trial.

The only point seriously urged for the reversal of the judgment arises upon the claim of the defendant that, under the circumstances, the burden of proof was upon the plaintiff to establish that the insured was in good health on the 13th of February, 1890, when the policy was re-instated. The question was raised by exceptions to refusals to charge and by an exception to the charge made,.“that as evidence stands the plaintiff is entitled to recover, unless the defendant satisfies the jury by a fair preponderance of •evidence that John L. Spencer was not in good health at the time of the re instatemeut, February 13th, 1890.” There was no error in the charge or in the refusal to charge that the burden was upon the plaintiff to show that the insured was in good health when the policy was re-instated. The representation made by the insured at that time was a warranty. The answer alleged a breach of the warranty. This was a defense which the defendant wa§ bound to establish to the satisfaction of the jury. It was an affirmative issue interposed by the defendant, and the burden of establishing an issue is upon the party tendering it. The only proof upon which the .defendant relied was the admission in the original proofs of loss that the illness of the deceased commenced February 6th, 1890. This was competent evidence in support of the issue, because it was an admission by a party to the record against her interest. . But it raised no estoppel. No action had been taken based on the original proofs which changed the situation of the defendant. The original proofs were subject to correction, and the company were advised by the subsequent affidavits of the claim that the date of the first illness in the original proofs was incorrectly given, and that in fact it was subsequent to the re-instatemeut of the policy, and proof to substantiate the allegation of mistake was given on the trial. It was for the jury to weigh the evidence, the admission on the one side and the proof of the actual fact of the date of the illness in connection with the explanation of the admission on the other. The burden of proof was not changed by the admission. Unexplained it would have been conclusive, and the defense would have been made out. But when explained it lost its significance, provided the jury accepted the explanation. When the evidence was all in it was for the jury to say whether, upon the whole evidence, the breach of warranty had been established by a preponderance of evidence. The burden of this issue at no time during the trial shifted from the defendant to. the plaintiff. What the plaintiff did was simply to prove facts tending to break the force of the fact relied upon by the defendant, and to show that the admission in the original' proofs was the result of mistake or apprehension. It was not necessary that the plaintiff should offer herself as a witness to prove or explain the mistake. It could be established by the testimony of other witnesses. The cases in this court upon. the burden of proof and that it is not changed by evidence which, unexplained, makes out a prima fade defense, are conclusive against the point upon which the defendant relies. Lamb v. C. & A. R. R, etc., Co., 46 N. Y. 279; Heinemann v. Heard, 62 N. Y. 455 ; Goldschmidt v. Mutual Life Ins. Co., 102 N. Y. 486; 2 St. Rep. 421. The judgment should be affirmed.

All concur. Judgment affirmed.  