
    Julius Stanulevich, Respondent, v. St. Lawrence Life Association, Appellant.
    
      Stanulevich v. St. Lawrence Life Assn., 183 App. Div. Ill, reversed.
    (Argued March 16, 1920;
    decided April 13, 1920.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 11, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.
    The defendant issued an insurance policy to the plaintiff indemnifying the plaintiff for loss of time by sickness. The plaintiff claimed that he was entitled to the amount sued for by reason of his illness. The material defense is that the plaintiff in making the application for this policy, which, in pursuance of section 58 of the Insurance Law (Cons. Laws, ch. 28), was annexed to and formed part of the contract of insurance, made a material false statement when he said that he had not had any medical or surgical treatment within the past five years, which statement is conceded not to be the fact.
    The plaintiff could not read or write English well and the soliciting agent for the defendant, who furnished the policy, testified in his behalf that he knew and the plaintiff informed him of his illness, but that he did not state the same in the application.
    
      Samuel Crook for appellant.
    
      James G. Meyer and John T. Kelly for respondent.
   Per Curiam.

Upon the authority of Bollard v. N. Y. Life Insurance Co., decided January 27, 1920 (228 N. Y. 521), and Baumann v. Preferred Accident Insurance Co. (225 N. Y. 480), the application being a part of the policy, the insured and assured are bound by its terms, as it is part of the contract of insurance. The application in question was signed by the plaintiff. The plaintiff cannot maintain his present action and the judgment and order appealed' from should, therefore, be reversed, and the complaint dismissed, with costs in all courts.

His cock, Ch. J., Collin, Hogan, Pound, McLaughlin, Andrews and Elkus, JJ., concur.

Judgment and order reversed, etc.  