
    William W. Corbitt, as Administrator of Mary O’Connor, Respondent, v. The Metropolitan Life Insurance Co., Appellant.
    (City Court of New York
    General Term,
    November, 1894.)
    Where correct answers are given to an insurance agent to questions contained in the application, but, through fraud or mistake, the agent inserts incorrect and untrue answers, the insurer, and not the insured, is liable for their falsity, and a defense of breach of warranty is not sustainable in an action on the policy.
    Appeal by the defendant from a judgment entered on a verdict in favor of the plaintiff.
    
      Arnoux, Bitch, & Woodford, for appellant.
    
      M. P. O’ Gonnor, for respondent.
   Ehrlich, Ch. J.

The jury found, upon evidence justifying the conclusion, that the decedent was the person insured; that the insurance was for the benefit of the estate; that the answers which she made to the agent of the defendant were true, and that the answers which appear in the written application, and on which the defendant founds its defense of breach of warranty, were inaccurately put down by the defendant’s agent, so that, in point of fact, there was no fraud or misrepresentation by the insured.

Treating these facts as found adversely to the defendant, the law applicable is that where correct answers are given to an insurance agent to questions contained in the application, but either through fraud or mistake the agent-inserts incorrect and untrue answers, the insurer, and not the insured, is responsible for their falsity, and in an action on the policy the defense of breach of warranty is not sustainable. O’Brien v. Home Benefit Society, 117 N. Y. 310 ; Bennett v. Insurance Co., 106 id. 243 ; Miller v. Insurance Co., 107 id. 292 ; Grattan v. Insurance Co., 80 id. 281 ; 92 id. 274 ; Benninghoff v. Insurance Co., 93 id. 495.

It is upon this theory alone that the judgment can be upheld.

True, the evidence is not as cogent as might be desired, yet. it was credited by the jury, and was deemed by them sufficiently reliable to warrant the result arrived at.

The trial judge was seemingly of the same opinion, for he promptly denied the motion to set the verdict aside.

It follows that the judgment and order appealed from must be affirmed, with costs.

Yaw Wyok, J., concurs.

Judgment and order affirmed, with costs.  