
    Edward Makel, Respondent, v. The John Hancock Mutual Life Insurance Company, Appellant.
    
      Life insurance—breach of a wa/rranty that the benefwia/ry is the wife of the insured. The falsity of a warranty contained in an application for a policy of life insurance, that the beneficiary is the husband of the insured, will defeat any action on the policy.
    Hirschberg, P. J., dissented.
    Appeal by the defendant, The John Hancock Mutual Life Insurance Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 26th day of October, 1903.
    
      Hugo Hirsh [Emanuel Newman with him on the brief], for the appellant.
    
      Martin E. Halpin, for the respondent.
   Hooker, J.:

■ The plaintiff had a recovery for the face of a policy of insurance issued by the defendant on the life of one Lena Makel. The contract of insurance provided in part as follows: The insurance company “ In consideration of the statements and agreements in the application herefor, which are hereby referred to, and as warranties made a part of this contract, and of the premium of fourteen cents * * * agrees to pay,” etc. The 12th question in the application for the insurance is: “For whose benefit is the insurance desired?” and is answered, “Edward Makel.” “Relationship to person proposed for insurance ? ” answered by the assured, “ Husband.” The following evidence given by the plaintiff, however, shows that he was not the husband of the assured': “Was Lena Makel your wife ? [Objected to, and objection sustained.] A. Tes, sir. Q. Were you married ? A. Not exactly married; I was living with her near two years. * * * Q. Well, did you live with Lena Makel, the person mentioned in this policy ? [Objected to; objection overruled.] By the witness:. Tes, sir.” The witness testified that she went by the nattie' of Lena Makel, and that they cohabited . together; that she was introduced as Mrs. Makel, and that he supported her and. she took care of the home. He said that the first place they lived together was at Bancroft place. “ Q. Did you have any conversation with her before you went to live with her in Bancroft Place? A. No. sir. * * * Q. When you went to live with her — when you first started in to live together, did you say anything to her and she say anything to you ?• [Objected to; objection overruled.] Q. Tell us what she said to you ? A. The first place I met her was in 105 Johnson Avenue; I was to her sister’s Mrs. Ruoff,-and she took a fancy to me and I took a fancy to her, and she said, how about if we go housekeeping ? Q. What else ? A. So I said, all right, and went to work and got furniture and we moved in 15 Bancroft Place. Q. Was that all the conversation you had with her ? A. Tes, sir.”

It is clear from this evidence that no contract of marriage ever existed between the assured and the plaintiff, civil or ceremonial. He was not her husband, and her warranty, contained in the application for the insurance to that effect, was false. ■ This breach of warranty was held in Gaines v. Fidelity & Casualty Co. (93 App. Div. 524; 87 N. Y. Supp. 821) to be sufficient to forfeit the policy. In that case we took occasion to examine the cases on this question at some length, and its further discussion here is unnecessary.

.. Upon the authority of that case, this judgment must be reversed.

Bartlett, J., concurred;. Jenks, J., in result in separate memorandum ; Hirsohberg, P. J., dissented.

Jenks, J. (concurring):

I vote for reversal.

I think that Hooker, J., is right in his views that there was a breach of warranty made by the answer that the assured was the husband of Lena Makel. But I do not base my concurrence upon Gaines v. Fidelity & Casualty Co. (93 App. Div. 524; 87 N. Y. Supp. 821), for the reason that we limited otir judgment in that case to a policy of accident insurance. I prefer to rest my decision upon Jeffries v. Life Ins. Co. (22 Wall. 47). It is true that Hooker, J., writing for the court in Gaines' Case (supra), cited Jeffries’ Case (supra), but the decision in Gained case is not a clear precedent in the case at bar, for the reason just stated. Ruoff v. John Hancock Mut. Life Ins. Co. (86 App. Div. 447) does not deal with the question presented in this case. I think now as I thought when I wrote in Ruoff's case that the woman could insure, her life for the benefit of the man, though they never intermarried, and, of course, that the man could insure his life for the benefit of the woman. (Olmsted v. Keyes, 85 N. Y. 593.) But the question in this case is as to the breach of warranty made by the assured in writing in his application that he was the husband of the beneficiary when he was not.

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