
    Margaret Donnelly, Respondent, v. The Metropolitan Life Insurance Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Life insurance — Validity of a condition making proofs of death evidence for but not against the insurer.
    A condition in a policy of life insurance providing that “All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of but not against the company ” is valid.
    Where the policy, which had lapsed, is revived upon condition that the insured is in sound health proofs of death containing a certificate of the attending physician showing that the insured was at the time of the revival suffering from chronic pulmonary tuberculosis, a disease which continued and caused his death, are competent evidence for the company, in an action by the beneficiary, to show that the insured was not in sound health when the policy was revived.
    Appeal by defendant from a judgment rendered in the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of the plaintiff.
    Ritch, Woodford, Bovee & Butcher, for appellant.
    J. S. Bernstein, for respondent.
   Ebeedmah, P. J.

This action was brought upon a policy of life insurance issued by the defendant upon the life of one John Donnelly for the sum of sixty dollars, payable to plaintiff.

By reason of default in payment of the premiums thereon the policy had lapsed, and on July 27, 1903, was revived, the clause reviving the same containing the following condition : “ This policy having lapsed is hereby revived upon condition that the insured is in sound health.”

The insured died August 28, 1903, and the plaintiff duly filed proofs of death, such proofs containing among other papers a certificate of the attending physician. The policy contained this provision: “All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of but not against the company.”

A condition identical with this was considered in Bfoward v. Metropolitan Life Ins. Co., 18 Mise. Rep. 74, and was held to be valid, Mr. Justice Bischoff writing the opinion, and saying: “ Such a condition is not invalid in its nature, it being competent for the parties to agree as to the effect which a certain form of evidence shall have in determining questions arising between them, and in the present instance the condition was expressed in most unmistakable terms.” See also Dwight v. Germania Life Ins. Co., 103 N. Y. 346; Wieder v. Union Surety & Guaranty Co., 42 Misc. Rep. 499.

The defendant herein showed by such proofs of death, by the physician’s certificate aforesaid, that the deceased had been treated by said physician from July twentieth to the time of his death for chronic pulmonary tuberculosis, and that consequently he was not in sound health when his policy was revived on July 27, 1903. This was competent testimony in support of the defendant’s contention that the deceased was not in good health when his policy had been revived. Spencer v. Citizens’ Mut. Life Ins. Co., 142 N. Y. 505.

To overcome this testimony the plaintiff testified that her son (the deceased) “ was in good health on August 1, 1903,” and another witness testified that she had known the deceased for about four years prior to his death, had seen him frequently during that time and saw him five days before his death “ carrying a basket of clothes home for his mother.” This testimony is of no force whatever and in no way tends to disprove the statements contained in the certificate of death. Kipp v. Metropolitan Life Ins.. Co., 41 App. Div. 300.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event.

Giegebich and McCall, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event.  