
    Sarah A. Bollard, Appellant, v. New York Life Insurance Company, Respondent.
    
      Bollard v. N. Y. Life Ins. Co., 182 App. Div. 915, affirmed.
    (Argued January 13, 1920;
    decided January 27, 1920.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 9, 1918, which affirmed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.. Plaintiff sued, as beneficiary, to recover on an insurance policy of $1,000, written by the defendant on the life of her daughter. The complaint alleged the issuance of the policy, the insured’s death and due performance of all conditions of the policy contract, except as to furnishing proofs of death, which the defendant is alleged to have waived. The answer denied all liability under the policy and alleged that in her written application for the insurance and in her answers to the defendant’s medical examiner which formed a part of her application, the applicant made material misrepresentations as to her physical condition and her medical and insurance history; that she agreed with the defendant that her said representations were full, complete and true, that they were material to the risk, and that the defendant should rely and act upon them; that in reliance upon the truth of her said representations the defendant was induced to and did make and deliver the policy in question; and that upon the discovery of the true facts the defendant promptly, elected to rescind and did rescind the contract and for the purpose of restoring the status quo tendered return of all it received under it, with interest.
    
      Joseph W. Ferris and Jonah J. Goldstein for appellant.
    
      Louis H. Cooke and James H. McIntosh for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Collin, McLaughlin, and Andrews, JJ.; Hogan, Pound and Elkus, JJ., vote for modification granting a new trial.  