
    Harriet Hoffman, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Second Department,
    December 10, 1909.
    Insurance—• pleading performance — evidence — proof of death.—transcript of record of department of health — identity of name. •
    A plaintiff in an action on a life insurance policy who alleges performance of the contract on her part cannot prove waiver of performance of covenants or conditions of the policy. -
    
      Where a life insurance policy provided that'it should be void if the insured had had any disease of the kidneys, and that proofs of death should be made on specified blanks and contain the record, evidence and verdict of the coroner's inquest, if any, and the plaintiff fails to show a submission of proofs of death in accordance with the terms of the policy, but instead introduces in evidence a single paper given to her by an employee of the insurer after the death of the insured which she filled out in accordance with his directions, but which is incomplete in that in answer to the question “ Cause ofi death” is written “See transcript,” it is error to exclude a transcript of the records of the department of health, duly sealed and certified, offered in evidence by the defendant stating that the cause of the insured’s death was “Alcoholism, Chronic Brights,”
    The identity of the person referred to in the death certificate with the person referred to in the policy is presumptively established by the identity of name.
    Appeal by the defendant, the Metropolitan Life Insurance.Conn ■pany, from a judgment of the Municipal Court of the city-of. Hew York, borough of' Brooklyn, in favor of the plaintiff, rendered on the 3d day of June, 1909.
    
      James Q-. Purdy, for the appellant.
    
      Emanuel Jacobus \ Jerome L. Adler with him on the brief], for the respondent.
   Burr, J.:

On the 7th of January, 1907, the defendant issued its policy by. which it agreed, subject to the conditions therein specified, to pay to the plaintiff the sum of $207 upon receipt of proofs of the death of Henry Gr. Harris, “ made in the manner, to the extent and upon the blanks required” in said policy. One of the conditions corn tained in the policy was that it should be void if the insured before its date had “ been attended by a physician for any serious disease or complaint; or has had before said date any ■ * * *' disease of ' the * * * kidneys.” Another condition of the policy was that “ Proofs of death under this policy shall be made upon blanks to be furnished by the company and shall contain * * * the record, evidence and verdict of the coroner’s inquest, if any be held.” On. July 27, 1907, the said Henry Gr. Harris died. Thereafter the plaintiff began this action to recover the amount of the said policy, and alleged in her complaint that the plaintiff had submitted to the defendant “proofs of. death in accordance with the terms and conditions of the said policy,” and that the plaintiff and the insured had performed all of the “ covenants and conditions on his and her part in said contract or policy to be performed.” From the judgment rendered in the said action the defendant appeals.

Having, alleged compliance, the plaintiff cannot establish waiver of performance of either covenants or conditions. (Allen v. Dutchess County Mut. Ins. Co., 95 App. Div. 86; Williams v. Fire Association of Philadelphia, 119 id. 573.) The plaintiff failed to show a submission of proofs of death in accordance with the terms and conditions of the policy. She testified that after the death of the insured she called at the office of the company and they gave her a paper which they instructed her to fill up and return. She then offered in evidence a paper partly printed and partly written, entitled “Metropolitan Life Insurance Company. Statement of Claimant.” This paper, which she says that she signed and gave to the insurance collector, was not verified, although the printed blank contained a form of oath to be administered, to the claimant. In answer to the question “ Cause of death ” was written the words “ See transcript.” When this paper was offered in evidence it was objected to as immaterial, irrelevant and incompetent, and on the ground that it was incomplete. It Was admitted and the defendant excepted.. If this unverified paper .could be deemed a proof of death (O'Reilly v. Guardian Mutual Life Ins. Co., 60 N. Y. 169; Glazer v. Home Insurance Co., 113 App. Div. 235), it was incomplete. Accompanying the paper which was produced by the defendant, although not physically attached to it, was another paper entitled, “ A Transcript from the Records of the Deaths Reported to the Department of Health of The City of Hew York.” This was certified by the chief clerk of the department of health in the borough of Manhattan, and the seal of the department was attached as required by section 933 of the Code of Civil Procedure. It was, therefore, competent evidence. (People ex rel. Sears v. Tobey, 153 N. Y. 381.) It purported to be the certificate and record of the death of Henry Harris: It does not appear how this paper came into the defendant’s hands. After the paper offered by the plaintiff had been received in evidence against defendant’s objection and exception, the defendant offered this paper in evidence and it was excluded upon the ground that the plaintiff had never seen it. The fair meaning of the plaintiff’s answer to the question, “ Cause of death,” must be a cause stated.in some transcript of the' record: of the death of the insured. It does not appear that there was any other .record thereof. The identity of the person referred to in the death certificate with the persqn referred to in the policy of insurance is presumptively established by the identity of name. (Hatcher v. Rocheleau, 18 N. Y. 87; Hartshorn v. Metropolitan Life Ins. Co., 55 App. Div. 471; Layton v. Kraft, 111 id. 842.) This presumption is further strengthened by the fact that the place of death stated in the death certificate and in plaintiff’s statement is the same, and that the names of the father and mother of the deceased and the insured are also thé same. Thé plaintiff must be deemed by her answer to the question “ Cause of death ” to have authorized the defendant to make this official transcript of the record of the death of Henry Harris a part of the paper which she submitted as a proof of death. If it was proper in the first instance to admit the paper offered by the plaintiff without this, certainly it was competent for the defendant to have this paper received in evidence to complete the statement made by the plaintiff. The materiality and .importance of this evidence becomes apparent when we find from an inspection of such paper that the cause of Harris’ death; was stated to be “ Alcoholism, Chronic Brights,” and that a coroneris inquest was held. That being the case, in order to make the proofs complete it was the duty of the plaintiff under the express provision of the policy to furnish to' the defendant thé record, evidence and verdict of the said coroner’s, inquest, and until that ivas done proofs of loss in accordance with the terms of the contract, and which were a necessary condition precedent to the right to recover upon the policy, had not been furnished.

It is probable that other- errors prejudicial to the defendant were committed in the course of the trial, but inasmuch as this is sufficient to require a reversal of the judgment it is unnecessary that these should be considered.

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

. Woodward, Jenks, Rich and Miller, JJ., concurred.

Judgment and order -of the Municipal Court reversed and new trial ordered, costs to abide the event.  