
    WANERKA v. SUPREME COUNCIL OF THE ROYAL ARCANUM.
    (Supreme Court, Appellate Term, First Department
    June 21, 1916.)
    1. Insurance ©=>817(2)—Mutual Benefit Insurance—Breach of Warran-
    ty—Burden of Proof.
    In a widow’s action to recover on a certificate of mutual benefit insurance, the burden was on the insurer to prove breach of warranty by insured that he had never applied for insurance in any life insurance company and been rejected.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 2001; Dec. Dig. ©=>817(2).]
    2. Insurance ©=825(2)-—Mutual Benefit Insurance—Question for Jury.
    In a widow’s action to recover an amount of insurance payable under the certificate of a mutual benefit association, question whether insured had applied for insurance in a life insurance company and made answers relative thereto, as claimed, in Ms application for membership in defendant society, hold for the jury under the evidence.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. ©=82o(2)J
    <§=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Appeal from City Court of New York, Trial Term.
    Action by Antonia Wanerka against the Supreme Council of the Royal Arcanum. From a judgment on verdict directed for defendant, plaintiff appeals. Judgment reversed, and new trial ordered.
    Argued June term, 1916,
    before GUY, BIJUR, and PH1UBIN, JJ.
    Morris & Samuel Meyers, of New York City, for appellant.
    Uriah W. Thompkins, of New York City, for respondent.
   GUY, J.

The plaintiff, beneficiary of a certificate of membership issued to her husband in Stanley Council, one of the defendant’s subordinate lodges, brought the action to recover $1,000, the amount of insurance payable under the certificate upon the husband’s death. The defense was breach of warranty, in that the husband, prior to his membership in defendant, had been rejected for insurance by the Prudential Insurance Company, although he stated in his application for membership, and expressly warranted, that he had never applied for insurance in any life insurance company and been rejected by any such company.

It appeared from the defendant’s testimony that within a year prior to decedent’s election to membership a person of the same name had applied for insurance in the Prudential Insurance Company and been rejected by that company. Defendant sought to show by the plaintiff and two of decedent’s brothers that the signature to the application to the Prudential was made by the decedent; but the plaintiff, while she admitted that one or more of the signatures on the application for membership were made by her husband, denied that the signature to the application to the Prudential was his, and the brothers testified that they could not state whether any of the signatures to the application for membership were made by the decedent.

Defendant’s witness Caulfield, a member of the defendant, and qualified in a measure to express an opinion on the subject, testified that the same person who signed the beneficiary certificate and the application for membership in the defendant signed the application to the Prudential. Although it does not appear in the record, it is conceded by counsel for respondent on the argument that in the blank of defendant’s medical examiner, opposite the question, (D) "Have you ever been rejected?” “No” is written over “Yes.”

At the close of the entire case the learned trial court denied plaintiff’s request to go to the jury, and directed a verdict for the defendant, because, as he said, “there is no doubt in my mind that this is the same signature.” The exception to the direction presents reversible error. The burden was on the defendant to prove the breach of warranty; and it was for the jury to sajr on all the facts in the case, and giving the opinion of Caulfield, a member of the defendant, such weight as they believed it was entitled to, whether decedent’s husband had applied for insurance in the Prudential Company and made the answers as claimed in the application for membership to the defendant.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  