
    (70 Hun, 200.)
    PATTEN v. UNITED LIFE INS. ASS’N.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Insurance—Reinstatement of Policy—Fraud.
    Where the defense in an action on a life insurance policy is that the policy had lapsed for nonpayment of premiums, and that the insured had procured it to be reinstated by representations as to his health which he knew at the time were false, defendant must prove that the insured knew such representations to be false.
    Appeal from circuit court, New York county.
    Action by Charlotte E. Patten against the United Life Insurance Association. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
    Harry Wilber, (E. Oldham, of counsel,) for appellant.
    Wing, Shoudy & Putnam, (J. A. Shoudy, of counsel,) for respondent.
   VAN BRUNT, P. J.

This action was brought to recover $1,000 upon a policy of insurance issued by the defendant upon the life of Jarvis Patten for the benefit of his widow, the plaintiff. The defense set up by the answer was that, by the express provisions of the policy, Jarvis Patten was obliged to pay to the defendant, within certain times, sums of four dollars, and that, upon default inpayment of any of said sums within the times mentioned in the contract, the policy should lapse and be void, and that he did in fact default in the payment of one of these installments, which became due and payable to the defendant under the terms of the contract of insurance, and that on or about April 23, 1888, Patten induced the defendant to reinstate him as a member, and to reinstate his policy, by stating and representing to the defendant, in writing, that he was in good health, and that no material facts regarding his past health or present condition had been omitted. The answer then alleged that the defendant, relying upon the truth of said statements, and induced thereby, received and accepted from said Patten a payment theretofore due, and reinstated him as a member upon the terms and conditions previously existing; and, further, that, since the death of Patten, defendant had been informed, and verily believed, that the statements and representations of Patten were false and untrue, and were known by him, at the time he made them, to be false and untrue, and that, in truth and fact, said Patten then well knew that his health was bad; and that defendant had rescinded said contract or policy, and had duly tendered, and in said answer offered to return, the sum of four dollars so paid, received, and accepted on the false statements and representations of Patten, as before alleged. Upon the trial, evidence was given upon the part of the plaintiff and defendant, and the case was submitted to the jury, and the only questions raised are those of exceptions to the charge.

It is urged that the court erred in charging that, to sustain the defense, it was necessary for the defendant to prove that Patten knew the statements made by him touching his health on the 19th of. April, 1888, were untrue. We think that the court committed no error in thus holding. This was the issue tendered by the answer. The agreement to reinstate the policy was sought to be rescinded upon the ground of fraud; and unless Patten, at the time he made the representations in question for the purpose of procuring the reinstatement of the policy, knew, or had cause to know, or was necessarily presumed to know, that his statements were false, then he certainly was not guilty of fraud. The whole ground upon which this claim of rescission rests, as already stated, is that of fraud; and it is difficult to see how a party can be guilty of fraud when he does not know, has no reason to believe, and cannot be presumed to know, that his representations are false. The question as to misstatements in the application to reinstate the policy in the case at bar is entirely different from that which "would have arisen had there been misstatements in the application for the policy itself. In such case, if the truth of the statements is guarantied by the provisions of the contract itself, they enter into the essence of the contract, and form a part thereof. But upon the application to reinstate, in the case at bar, there being no such guaranty, the company can only avoid its action by showing the existence of fraud. And the authorities cited by the learned counsel for the appellant all relate to false representation of material facts in the application for a policy, which policy contained a guaranty, and not for a reinstatement thereof, in which such guaranty was absent. The court did charge that if the jury found that Patten was not in good health on the 23d of April, 1888, the date at which the policy was reinstated, their verdict must be for the defendant. This, we think, was giving to the defendant a greater chance than legal rules required.

The judgment should be affirmed, with costs. All concur.  