
    Apolina Kurgan Mees, Appellant, v. Pittsburgh Life and Trust Company, Respondent.
    Fourth Department,
    July 7, 1915.
    Insurance—action on life insurance policy against foreign corporation — place of delivery of policy—defense—fraudulent representations of insured.
    Where, in an action against a foreign corporation to recover upon a life insurance policy, it is not alleged where the policy was delivered and the pleadings are insufficient to show or raise a presumption that it was made or delivered in this State, the Insurance Law of this State does not apply to regulate its form or legal effect, and, therefore, a demurrer ■to a separate defense should be overruled.
    A defense of fraudulent representations of the insured in his application as to his life, habits and other insurance cannot be sustained where the application or statements of the insured are not attached to and made a part of the policy as required by section 58 of the Insurance Law.
    Appeal by the plaintiff, Apolina Kurgan Mees, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of April, 1915, overruling a demurrer to a separate defense set up in the answer.
    
      Michael M. Cohn, for the appellant.
    
      Foster B. Turnbull, for the respondent.
   Per Curiam:

We think the order overruling the demurrer must be sustained for the reason that it does not appear that the insurance policy sued on was made or delivered in this State. Defendant is a Pennsylvania corporation, and it appears from its answer that the policy was executed at its home office in Pittsburgh, but whether delivered there or elsewhere is not alleged. It is alleged in the complaint that the policy was exécuted by defendant’s officers at Pittsburgh, Penn., and delivered to Piotra Kurgan without alleging where it was so delivered. The complaint also alleges that defendant “was and is duly authorized and licensed to transact its business within the State of New York;” also “that on or about April 11th, 1914, the defendant in consideration of the payment td it by Piotra Kurgan of the City of Lackawanna, County of Erie, State of New York, of the sum of One hundred nine and TyV ($109.16) dollars, the annual premium paid in advance on the delivery of its policy of insurance * * * insured the life of the said Piotra Kurgan,” etc.

We think these allegations are not sufficient to show or raise the presumption that the policy was delivered in this State. It may have been delivered in Pennsylvania or elsewhere than in New York; if so, the Insurance Law does not apply to regulate its form or legal effect. If it is not a New York contract the defense pleaded may be perfectly good. It is proper, however, to say that should it develop on the trial that it is, in fact, a New York contract, the defense pleaded, namely, fraudulent representations of the insured in his application for the policy as to his health, habits and other insurance, cannot be sustained, inasmuch as the application or statements of insured are not attached to ■ and made a part of the policy, as required by section 58 of the Insurance Law (Consol. Laws, chap. 28; Laws of 1909, chap. 33).

We concur in the construction placed on this section (58) of the statute in Murphy v. Colonial Life Ins. Co. of America (83 Misc. Rep. 475; affd., 163 App. Div. 875).

The order overruling the demurrer should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  